A NOVEL APPROACH TO THE LAW: THE CASE FOR AN EXPANDED STUDY OF CANADIAN LAW AND LITERATURE
by
David L. Steeves
Submitted in partial fulfillment of the requirements for the degree of Master of Laws
at
Dalhousie University Halifax, Nova Scotia April 2009
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Appendices Copyright Releases (if applicable) DEDICATION
To George Elliott Clarke: gentleman, scholar, champion of human rights, and valued friend for your keen understanding of literary advocacy.
And to my family for everything else— literally.
IV TABLE OF CONTENTS
LIST OF TABLES viii
ABSTRACT ix
ACKNOWLEDGEMENTS x
CHAPTER 1: INTRODUCTION 1
CHAPTER 2: LAW AND LITERATURE: A SURVEY OF SCHOLARSHIP 7
1. Law and Literature: An Historical Overview 7
2. The Law and Literature Movement 15 a. The Law In Literature 15 b. Criticism of Law in Literature 23 c. The Law as Literature 26 i. Narrative Scholarship 26 ii. Hermeneutic Scholarship 30 d. Criticism of Law as Literature 35
3. Conclusion 36
CHAPTER 3: LEGAL FICTIONS: CANADIAN LAW AND LITERATURE 38
1. Introduction 38
2. Literary Nationalism and a National Legal Literature 41
3. Literature, Law and Learning 68 4. Is There a Case for These Texts in a (Canadian) Class? 77
5. (De)Constructing the Canadian Legal Canon 85
CHAPTER 4: HOW A CANADIAN AUTHOR SPEAKS: SOME LESSONS ON RACE AND ERASED NARRATIVES IN GEORGE & RUE WITH AN APPLICATION TO RECENT CANADIAN JURISPRUDENCE ON RACE 92
1. Introduction 92
2. Blackening the Page: The Black Acadian Tragedy of George and Rue 95
3. George & Rue: A Literary Commentary on Contextual Adjudication 123
v 4. A Fictional Frame for Contextual Adjudication: An Analysis of the Ontario Court of Appeal's Decision in R. v. Hamilton Through the Lens of George Elliott Clarke's George & Rue 130 a. Introduction 130 b. Facts 131 c. Judicial storytelling 133 d. Restraint 138 e. Voicing 146 f. Sentencing Principles: Proportionality and Parity 151 g. Ramifications for Adjudication 156
CHAPTER 5: CONCLUSION 162
BIBLIOGRAPHY 171
APPENDIX A: SURVEY OF THE INSTRUCTION OF LAW AND
LITERATURE WITHIN CANADIAN LAW SCHOOLS 191
University of Alberta 191
University of British Columbia 192
University of Calgary 192
Carleton University 192
Dalhousie University 192
Universite de Laval 193
University of Manitoba 193
McGill University 197
Universite de Moncton 219
Universite de Montreal 219
University of New Brunswick 219
University of Ottawa (Civil law section) 219
University of Ottawa (Common law section) 220
University de Quebec a Montreal 221
Queen's University 221
VI University of Saskatchewan 223
Universite de Sherbrooke 225
University of Toronto 225
University of Victoria 239
University of Western Ontario 242
York University- Osgoode Hall Law School 244
APPENDIX B: BIBLIOGRAPHY OF CANADIAN LAW AND LITERATURE SCHOLARSHIP 245
vn LIST OF TABLES
Table 1 "Emerging canon" works taught in Canadian Law Schools 89
vm ABSTRACT
Canadian literature has told a significantly different story about the law than that which emerged from its American literary counterpart. Legal subject matter was, for the most part, absent in early Canadian literature yet has seen a significant growth in the last couple of decades. Similarly, the study of Law and Literature, a highly popular area of academic inquiry in the United States, has only recently gained significant ground within Canadian law faculties. The reasons for both are multifaceted and reflect distinct social, cultural, and legal pedagogical differences between Canada and the United States. This thesis explores these differences and their inherent potential for future discovery by (1) surveying the larger study of Law and Literature including its historical genesis and major debates; (2) placing the late emergence of a Canadian legal literature and a Canadian Law and Literature scholarly practice in context as well as examining their manifestation in the work of artists and academics alike; and (3) demonstrating a practical application of Law and Literature scholarship by viewing a decision of the Ontario Court of Appeal through the critical lens of George Elliott Clarke's novel entitled George and Rue. It is hoped that such preliminary work may support a case for the expanded study of Law and Literature in a Canadian context.
IX ACKNOWLEDGEMENTS
This thesis has been a labour of love and a process of much discovery. During this time there have been many individuals without whom I would have been unable to profit so significantly from this experience and each deserving of mention.
Firstly, I want to thank my parents, John and Sandra, as well as my brothers and sister, Mark, Mike, and Kate. As a constant source of support throughout this process, each of you has given a measure of yourselves to this project such that my achievement is more accurately a shared accomplishment.
Secondly, I want to express my sincere gratitude to my supervisor Professor
Philip Girard. Thanks are not sufficient as your guidance, mentoring, knowledge and understanding have made this experience one from which I have gained immeasurably.
To my reader and examiner, Professors Richard Devlin and Vaughn Black, I wish to offer my appreciation for your understanding, valuable comments, suggestions, and critique.
To the other professors who have shaped my program and development therein,
R. Blake Brown, Jennifer Llewellyn and Sheila Wildeman I wish to extend my sincere appreciation for your assistance, encouragement, and good humour.
My time in the LL.M. program would not have been as enriching had it not been for my classmates and friends who have both challenged and supported me (as well as provided exceptional "pot-luck"). To friends such as Kissi Agyebeng, Lisa Delong,
Godwin Djokoto, Berhanykun Ghebremedhn, Greg Harnish, Cathy Haskett-Morrison,
Jennifer Haskett, Selena Henderson, Antonio Herrera, Alisse Houweling, Lorraine
Lafferty, Ian Laing, Thomas Morrison, Jonathan and Valerie Shapiro, Lisa Stam, Michael
x Taylor, Tewelde Weldonhannes, and Matthew Williams I thank you all for being along
for the ride.
Additionally, to David Dzidzourneau I would like to extend my thanks for your
assistance and positive outlook on the graduate program as a whole.
My time at Dalhousie would not have been as productive and positive had it not been for the many members of the Law School and University who have extended their
good will and unique expertise. To Professors David Blaikie, Ann Morrison, and
Andrew Wainwright (Emeritus), law school staff Geordie Lounsbury, Sheila Wile, Tim
Young, and, in particular, all members of the Sir James Dunn Law Library staff, your
assistance and encouragement have been greatly appreciated.
Although based at Dalhousie Law School, this thesis benefited greatly from the
contributions of faculty from other institutions. Accordingly, I would like to thank
Professors Mysty Clapton (University of Western Ontario), Dick Dunlop (University of
Alberta [Emeritus]), Isobel Findlay (University of Saskatchewan), Kate Frego
(University of New Brunswick at Saint John), Rebecca Johnson (University of Victoria),
Elizabeth Judge (University of Ottawa), Dennis Klinck (McGill University), David
Methven (University of New Brunswick at Saint John), Lynn Penrod (University of
Alberta), Simon Stern (University of Toronto), Desmond Manderson (McGill
University), Mark Weisberg (Queen's), and Nancy Wright (University of Newcastle).
Furthermore, I want to thank the Faculties of Law and Graduate Studies for their financial assistance through the Graduate Studies Scholarship, the Graduate Studies
Bursary, and the Travel Assistance Program.
XI Penultimately, I want to thank the faculty members of the Mount Allison English department; in particular Professors Terry Craig and Carrie MacMillan, who initially inspired my interest in, and insight towards, literature generally and Canadian literature specifically.
Lastly, to Professor George Elliott Clarke I offer my profound thanks for your words and corresponding literary courage that were the catalyst for this thesis as well as your generous assistance and mentoring throughout the project.
xu "A lawyer without history or literature is a mechanic, a mere working mason; if he
possesses some knowledge of these he may venture to call himself an architect."
Sir Walter Scott Guy Mannering (1815)
xm 1
Chapter 1: Introduction
Since the publication of James Boyd White's The Legal Imagination in 1973, the
Law and Literature movement has emerged as a significant area of interdisciplinary scholarship engaging law students, practitioners, and academics alike. Despite, or perhaps because of, dissenting claims challenging the movement's focus and, at their most extreme, its purpose, Law and Literature scholars have assembled a mass of significant discourse that has integrated itself into many aspects of the academy as a whole. What is remarkable about the field of Law and Literature is that, with very few exceptions, it has remained, until very recently, a predominantly American form of scholarship.
In 1991, C.R.B. Dunlop, then-professor of law at the University of Alberta, offered an optimistic assessment of the study of Law and Literature when he stated that it had "established a foothold in the law schools of North America."1 In what has proven to be one of only two significant assessments of the Canadian elements within the larger
Law and Literature enterprise, Dunlop correctly describes Law and Literature's position within the United States but is perhaps a little too positive in his assessment of the area of study within Canada at that time.2 While it is certainly worth noting that Dunlop was the first to institute a course in Law and Literature in Canada in 1974, he was alone in this area until the 1980's when Dennis Klinck began teaching at McGill and later with the
1 C.R.B. Dunlop, "Literature Studies in Law Schools" (1991) 3 Cardozo Stud. L. & Lit. 63 at 63. 2 At the time of Dunlop's article, only three law schools offered courses in Law and Literature or involving aspects thereof: the University of Alberta, McGill University, and Queen's University. Additionally, the level of active scholarship amongst those teaching academics and others across Canada was minimal with just nine papers published by five individuals. It would not be until the following year that Dennis Klinck would publish one of the most significant pieces of Canadian scholarship on Law and Literature, The Word of the Law: Approaches to Legal Discourse. While the number of publications since the early 1990's has grown, there has been no comparable academic effort of similar breadth to that of Klinck's work. 2 work of Mark Weisberg at Queen's Law School and Anne McGillivray at the University of Manitoba in the 1990's. Indeed, at the time of Dunlop's article, Law and Literature could only have been viewed as making a marginal impact at best on Canadian legal education with limited course offerings and a handful of journal articles. Since Dunlop's article, however, there has been a significant upsurge in Law and Literature instruction within Canadian law schools with ten faculties currently offering courses in this area.3
Also, while comparably less than their American counterparts, more Canadian legal academics are identifying Law and Literature as a research interest resulting in a growing body of scholarship. What is notable, however, is that there has been limited attention given to Canadian literary works or subject matter within both Canadian Law and
Literature scholarship and instruction.
As Dunlop notes, the relatively limited adoption of Law and Literature within
Canadian legal curricula and the related lack of academic activity in the area by Canadian law professors may be explained by referencing Harry Arthurs' Law and Learning:
Report to the Social Sciences and Humanities Research Council of Canada by the
Consultative Group on Research and Education in Law.4 Published in 1983, this oft- cited report mapped the development of Canadian legal research and scholarship to that point. Law and Learning found that Canadian legal scholars had concentrated their
3 In the 2007-2008 academic year, the faculties of law at the University of Alberta, McGill University, the University of Manitoba, Osgoode Hall Law School, the University of Ottawa, Queen's University, the University of Saskatchewan, the University of Toronto, the University of Victoria and the University of Western Ontario offered courses that either concentrate on Law and Literature generally or aspects of Law and Literature scholarship. It should be noted that the University of New Brunswick offered a course in Law and Pop culture but no longer does so as the instructor, Prof. Steven Penney, transferred to the University of Alberta. 4 Social Sciences and Humanities Research Council of Canada, Law and Learning: Report to the Social Sciences and Humanities Research Council of Canada by the Consultative Group on Research and Education in Law (Ottawa: Social Sciences and Humanities Research Council of Canada, 1983) [hereinafter the Arthurs Report]. 3 efforts in areas of conventional research to the virtual exclusion of more fundamental research.5 Arguably, while these conclusions may have supported Dunlop's findings over ten years ago they are not entirely explanatory today. Canadian law schools have expanded their curricula and legal scholars have significantly broadened their critical perspectives; albeit certainly not at levels advocated within Law and Learning. With courses such as jurisprudence, feminist legal studies, Canadian legal history and comparative law found in virtually all Canadian law schools, as well as the corresponding faculty research, why has Canadian Law and Literature scholarship failed to find a more significant place for itself within the academy?
As mentioned above, criticism from within and without has become an important part of Law and Literature discourse, with its dissenters (i.e. Law and Economics scholar
Judge Richard Posnef) often shaping the debate. While this debate has a necessary place in a general survey of Law and Literature, and will therefore be reflected in this thesis, I am unwilling to accept various critics' claims suggesting that an inability on the part of law professors to teach literary analysis, or Law and Literature's irrelevance within the curriculum, necessarily explain the current state of Law and Literature in its Canadian context.6
As the first graduate thesis in law to apply a Canadian perspective to the study of
Law and Literature, my work will not only explore the subject area generally but also attempt to place the relatively limited literary and critical efforts by Canadian writers and academics, both legal and literary, in a unique context. The reasons for Canadian Law and Literature's marginality, I suggest, reflect significant differences in American and
5 Ibid, at 54-55, 69. 6 Richard Posner, "Remarks on Law and Literature" (1992) 23 Loy. U. Chi. L.J. 181. See also Richard A. Posner, Law and Literature, rev. ed. (Cambridge: Harvard University Press, 1998). 4
Canadian literature as well as the differing approaches to legal scholarship and pedagogy that have emerged in the United States and Canada. As will be discussed in this thesis,
Canadian literature tended to originate within the halls of academia whereas the genesis of American literature occurred in the courtroom and on the battlefield. A quick survey of our nation's earliest writers reveals academics and members of the Establishment professing an idealized notion of Canada whereas America's earliest literary ideals were crafted by lawyers as master orators, writers, and editors who often invoked their own profession as inspiration. Moreover, the apocryphal notion that Canadian literature chronicled a nation that emerged through constitutional compromise rather than revolutionary conflict has blinded many to the numerous battles that were waged and ultimately chronicled in Canadian courtrooms.7 These stories exist and, on levels of legal and cultural significance, demand a larger audience. Their prior erasure, however, may be linked to an earlier reluctance towards interdisciplinarity and an unquestioning reliance on an accepted literary cannon. These trends have fortunately been discarded by current practitioners who have chosen to infuse their curricula with Canadian sources and express a concern for the text that transcends the conventional novel and allows examples of "found literature" to exist as sites for analysis as well as a post-modern questioning of an authoritative canon. Furthermore, relatively recent events on the Canadian literary scene have resulted in the publication of works that explore the role of law in Canadian
7 Robert L. McDougall, "Literary Nationalism: Canada and the United States" in Robert L. McDougall, ed., Totems: Essays on the Cultural History of Canada (Ottawa: Tecumseh Press, 1990) 51 at 54, 62. McDougall acknowledges that, unlike the United States, the outset of Canadian literature nationalism was not the result of a definitive moment such as the American Revolution. McDougall accurately characterizes the Canada's national genesis as being a gradual process: "It was to be evolution and not revolution, and with evolution, the retention of colonial ties in a thousand forms, the last of these on the legal side of independence only recently been ended with the successful repatriation of the Canadian Constitution by Pierre Trudeau's government in 1983." 5 society. These include such notable works as Margaret Atwood's Alias Grace, John
MurrelPs libretto for Filumena,9 George Elliott Clarke's "Execution Poems",10 Anne
Marie MacDonald's The Way the Crow Flies,11 and Barbara Gowdy's Helpless}2 Also, the rising numbers of critically engaged literary scholars within law faculties have placed this nation's writers and academics on the cusp of a significant engagement with Law and
Literature. The next step is an essential one for Canadian literary and legal identity: a
(re)discovery of our national legal heritage and the appropriate critical engagement of its literary and cultural manifestations.
My intent for this thesis is equal parts provocation and prescription. As I will demonstrate in this first chapter of the thesis, a review of the ever-developing themes within Law and Literature reveals that the excavation of lost narratives is but one of several significant contributions that this scholarly discipline may contribute to the study of law for Canadian students, scholars, and lawyers alike. If, however, this scholarship is to gain significance within the Canadian academy it is essential to first understand its analytical framework and then apply it in a manner that is conscious of the unique cultural and pedagogical differences expressed in Canadian literature and legal education
First published in 1996, Atwood's novel won the prestigious Giller Prize and was shortlisted for the Booker Prize. The novel references the 1843 murders of Thomas Kinnear and his housekeeper Nancy Montgomery in what was then Upper Canada. The title character, Grace Marks, was convicted of the crime. 9 Commissioned by the Banff Centre for the Arts and the Calgary Opera, the work is one of the very few grand operas commissioned and produced in Canada. It describes the events leading to the trial and conviction of Filumena Costanzo for murder. Costanzo was one of just 13 women executed in Canada. John Murrell, Filumena (2003) [unpublished, archived at The Banff Centre]. 10 George Elliott Clarke's work references the trials of his matrilineal cousins George and Rufus Hamilton for the murder of a Fredericton taxi driver. The collection of poems won the Govern General's Award for poetry. 11 MacDonald's novel was inspired by the case of Steven Truscott who was wrongfully convicted in 1959 for the murder of a classmate, Lynne Harper. Truscott was later acquitted by the Ontario Court of Appeal. Anne Marie MacDonald, The Way the Crow Flies (Toronto: A.A. Knopf, 2003). 12 Gowdy's novel was short listed for the Governor General's Award and won the Trillium Book Award in 2007. It chronicles the abduction of a young girl by her neighbour. 6 respectively. This chapter will concentrate on a review of the major themes present within contemporary Law and Literature scholarship. While this will involve a discussion of the various benefits and drawbacks to each, I will resist the tendency to suggest a preferred methodological approach. Instead, I believe that a Canadian approach toward Law and Literature scholarship would benefit from experimentation with a variety of the major methods, provided one is always mindful of their inherent limitations. My second chapter attempts to provide some explanation for the relatively late arrival of both a Canadian legal literature and Canadian Law and Literature scholarship by examining the cultural and pedagogical differences between Canadian and the more extensive
American examples. I will also provide a survey of current examples of Law and
Literature instruction and scholarship taking place in Canadian law schools. Lastly, I will demonstrate the potential for Law and Literature in a uniquely Canadian context by an analysis of George Elliott Clarke's George & Rue in light of the Ontario Court of
Appeal's decision in R. v. Hamilton.
While the arrival of a Canadian legal literature and Canadian Law and Literature scholarship has been relatively late, it nonetheless holds significant potential as an area of interdisciplinary inquiry for practitioners and scholars alike: both legal and literary.
While both law and Canada's national literary heritage exist as social facts they have tended to remain at arms length. Fostering a closer relationship between the two on levels both analytical and archival will result in a more complete and accurate national narrative within and without the courtroom and classroom respectively. 7
Chapter 2: Law and Literature: A Survey of Scholarship
1. Law and Literature: An Historical Overview
Owing partly to its association with other "law ands" that emerged in the late 60's and 70's, the origin of the Law and Literature movement is often incorrectly ascribed solely to the scholarship of James Boyd White and specifically his work entitled The
Legal Imagination.n While White's work proved to be an important catalyst for the contemporary study of Law and Literature he certainly was not the first to explore this interrelationship. A more accurate description of the movement emerges from the work of legal historian Robert A. Ferguson who locates Law and Literature's roots in the late
18th and early 19th centuries.
As Ferguson asserts in Law and Letters in American Culture, a lawyer during this period was necessarily also a man of letters.14 This was born out of the practical necessities of professional training and competence as opposed to more purely cultural aspirations. Young lawyers, Ferguson notes, were challenged to be "well read in the whole circle of the arts and sciences" so they could form "an accurate acquaintance with the general principles of Universal Law."15 To aid in this endeavour, courses of study were devised by such noted lawyers of the period as Thomas Jefferson16 and David
Hoffman.17 Students subscribing to these "reading lists" could expect a course of study ranging from five to six years during which they would encounter works such as "the
13 Gary Minda, Postmodern Legal Movements: Law and Jurisprudence at Century's End, (New York: NYU Press, 1995) at 149. 14 Robert A. Ferguson, Law and Letters in American Culture, (Cambridge: Harvard University Press, 1984) at 66. 15 Ibid, at 28. 16 The third President of the United States of America, Jefferson was a noted politician, statesman, and writer amongst other endeavours. 17 Supra note 14 at 28-29. 8
Bible, Cicero's De Officiis, Seneca's Morals, Xenophon's Memorabilia, [and] Aristotle's
Ethics" during their study of "history, politics, ethics, physics, oratory, poetry, criticism, etc."18 While this may have been the ideal, the reality bore little similarity thereto as limited resources and "very weak collective standards" allowed many lawyers to enter the profession following limited preparation and the mastery of, quite often, one text:
Blackstone's Commentaries.19 If this was the case then how did the American legal profession develop such a significant literary background?
Ferguson offers two explanations. The first of these comes from the recognition on the part of lawyers during this period that while they may have been able to enter the profession without a significant breadth of knowledge their success upon admission demanded it. Ferguson suggests that this was directly tied to the fact that courtroom litigation dominated legal practice during the period.20 This was because courts occupied a dual role within a community as both a means for conducting civic business as well as a venue for public entertainment. With lawyers such as William Wirt,21 Daniel Webster,22 and Rufus Choate23 drawing crowds to hear them argue cases, the spectacle of a lawyer's argument was not lost on the lawyers themselves, the gallery, or even the court itself as evidenced by Joseph Story's 1824 account of a United States Supreme Court session:
s Supra note 14 at 28. 19 Supra note 14 at 30. 20 %?ra note 14 at 69. 21 William Wirt (1772-1834) was a lawyer who would become the 9th Attorney General of the United States of America under Presidents James Munroe and John Quincy Adams. As an early American biographer, Wirt wrote Life and Character of Patrick Henry in 1816. 22 Daniel Webster (1772-1852) was a lawyer and noted orator who was elected to both the United States house of representatives and senate and was appointed on two separate occasions to the office of Secretary of State for the United States of America (184142 & 1850-1852). 23 Rufus Choate (1799 - 1859) articled in the office of William Wirt and assumed Daniel Webster's seat in the United States Senate. He died in Halifax, Nova Scotia on August 13,1859 after falling ill suddenly on an attempted sailing to Europe. 9
"Counsel are heard in silence for hours, without being stopped or interrupted."24 The courtroom had become a stage for legal argument and its "actors" relied upon classical scholarship to aid in this endeavour.
Lacking the modern-day conveniences of "court records, case reports, codified statutes, and effective commentaries", Ferguson suggests that a lawyer's abilities in oral argument were marked by their skill at supplementing basic legal theory with some evidence of either classical training or a significant breadth of reading.25 Thus, literature gained not only a degree of currency amongst lawyers but, as suggested by Wirt, was viewed as persuasive by the courts:
In the company of men of letters, there is no higher accomplishment than that of readily making an apt quotation from the classics; and before such a body as the Supreme Court these quotations are not only appropriate, but constitute a beautiful aid to argument. They mark the scholar, which is always agreeable to a bench that is composed of scholars.26
Ferguson's second explanation comes as something of a convenient side effect to the practice of law during the antebellum period. As mentioned, courtroom litigation dominated legal practice and lawyers engaged therein were required to follow sitting judges by "riding circuit" to various communities where the court would hold session.
This invariably created a unique opportunity since lawyers constituted the only group "of educated Americans who regularly met and spent time together as a matter of course."27
These lawyers recognized "a responsibility to communicate their learning to a general citizenry"28 and set about creating works of literature that would be read by the wider public in newspapers and magazines they often edited during their spare time following
24 Supra note 14 at 69. 25 Supra note 14 at 66. 26 Supra note 14 at 67. 27 Supra note 14 at 70. 28 Supra note 14 at 70. 10
the court's sitting. Ferguson goes on to note that "[a]s contributors, editors, and patrons
of magazine literature, no other profession furnished as much good material as the law...
the bar furnished a majority of those who were active in the management of the general
magazines and reviews."29 To a significant degree, lawyers were not only the consumers
of early American literature but they were instrumental in the fostering of an early national voice.30
Literature's significant role in the practice of American law would not, however,
go unchallenged. The rise of legal formalism and a growth in professional expertise that
occurred in the wake of the American Civil War caused many lawyers and scholars to turn away from texts that were not strictly construed as legal including the lengthy reading lists prescribed to lawyers during the antebellum period.31 According to one of the movement's leading proponents, Harvard Law School Dean Christopher Columbus
Langdell, law was to be "conceptualized as a science rather than an art, a specialized professional discipline characterized by its own logic, methodology, and subject matter."32 In short, LangdelFs case method suggested that all one needed for the practice
of law was the law itself. Literature, therefore, was not only superfluous but also irrelevant. Accordingly, the role of literature in American law was significantly lessened but, as Jane Baron suggests, never completely removed.
Baron asserts that while Langdell's legal formalism may have been the predominant legal theory of the period it certainly was not accepted by all. Citing the
emergence of legal realism and its questioning of "whether legal principles alone could
29 Supra note 14 at 71. 30 Supra note 14 at 26. 31 Morton J. Horwitz, The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (New York: Oxford UP, 1992). 32 Jane Baron, "Law, Literature, and the Problems of Interdisciplinarity" (1999) 198 Yale L.J. 1059 at 1073. 11 dictate or explain outcomes"33 as well as the rise of legal progressives who viewed law as
"an instrument for the conscious pursuit of social welfare"34 she demonstrates that not everyone believed in law's capacity for autonomy. While literature would no longer have the same persuasive authority before the courts as it did with Wirt, Choate, and Webster, it would reassert its presence in the practice of law. The first examples of this are found in the work of Harvard Law School's Professor Eugene Wambaugh and his colleague
Dean John Wigmore who "began to note the widespread treatment of law and legal issues in many of Western literature's most famous novels..."35 Wigmore believed these references to be more than simple coincidence and saw them as offering some humanizing benefit to the reader: "the lawyer must know human nature [and] must deal with its types, its motives... For this learning, then, he must go to fiction which is the gallery of life's portraits."36 To aid in this end, both Wambaugh and Wigmore compiled lists of works that they believed might be beneficial to lawyers. Wambaugh's "Summer
Reading for Lawyers" identified "light reading" that might serve the dual purpose of entertainment and education and included legal and non-legal novels, legal biography, speeches, and magazine articles.37 Later, Wigmore employed a similar approach in his
33 Ibid, at 1074. 34 Supra note 32 at 1074. 35 Michael Pantazakos, "Ad Humanitatem Pertinent: A Personal Reflection on the History and Purpose of the Law and Literature Movement" (1995) 7 Cardozo Stud. L. & Lit. 31 at 38. 36 Ibid. 37 Eugene Wambaugh, Summer Reading for Lawyers, (1892) 2 Law Bull. St. U. Iowa 28, online: The University of Texas at Austin Tarlton Law Library - Law in Popular Culture Collection E-Texts
Fielding's Joseph Andrews, Tolstoy's Ivan Ilyitch, and Twain's Tom Sawyer}*
Wambaugh and Wigmore were not alone in their combined interest in law and literature. The noted legal scholar Judge Benjamin Cardozo also saw a significant link between the disciplines but his approach did not require the practice of law to be informed by literature. In his 1931 collection of essays and addresses, Cardozo made the rather bold assertion that legal argument and opinion, like literature, had the capacity to express a defined narrative style that an author could tailor accordingly for desired effect and efficacy.39 In the ensuing dissections of legal opinions by such noted jurists as
Brandeis, Holmes and Marshall, Cardozo identified and critiqued six types of judicial stylistics which he described as follows:
the type magisterial or imperative; the type laconic or sententious; the type conversational or homely; the type refined or artificial, smelling of the lamp, verging at times on preciosity or euphuism; the type demonstrative or persuasive; and finally the type tonsorial or agglutinative, so called from the shears and the pastepot which are its implements and emblem.40
For Cardozo, the ability of judicial narrative style to persuade and convey meaning was not to be found in the "mere felicities of turn or phrase [sic]" which differentiated the above approaches.41 Instead, he asserted that the most important aspect of judicial style was the manner in which a judge conveyed "groupings of fact and argument and illustration so as to produce a cumulative and mass effect..."42 Cognizant
38 John Wigmore, "100 Legal Novels" (1908) 2 111. L, Rev. 574, online: The University of Texas at Austin Tarlton Law Library - Law in Popular Culture Collection E-Texts
of these "architectonics of opinions", Cardozo then proposed a model informational
structure for judicial opinions:
Often clarity is gained by a brief and almost sententious statement at the outset of the problem to be attacked. Then may come a fuller statement of the facts, rigidly pared down, however, in almost every case, to those that are truly essential as opposed to those that are decorative and adventitious. If these are presented with due proportion and selection, our conclusion ought to follow so naturally and inevitably as almost to prove itself.43
Ultimately, Cardozo's scholarship proved significant for Law and Literature because its new approach to legal analysis signaled a fissure within the movement that is emblematic of its current day practice.
Wambaugh, Wigmore, and Cardozo's research began to develop a following within the legal community in the coming years but it was admittedly slow going with much of the attention focused on the furtherance of legal biography.44 That being said, by 1960 a significant amount of writing had been produced to justify the publication of the "seminal anthology" of literary and legal texts by Ephraim London.45 If Cardozo's research had suggested a division within the study of law and literature then London's anthology solidified the split with the two volume work bearing the titles that still represent the movement's dividing lines: Law In Literature and Law As Literature representing Wigmore and Cardozo's interests respectively.
Thus far I have set out the American roots of the Law and Literature movement which explain its current manifestation and, as will be discussed in the next chapter, partly contribute to its significant absence from the Canadian literary landscape. While
43 Supra note 39 at 32. 44 Supra note 39 at 39. 45 Ephraim London, The World of Law: A treasury of great writing about and in the law—short stories, plays, essays, accounts, letters, opinions, pleas, transcripts of testimony—from Biblical times to the present, (New York: Simon and Schuster, 1960). 14 these roots are indeed important, the movement made its largest step forward as an academic discipline with White's publication of The Legal Imagination which took direct aim at the heart of Langdell's legal philosophy. According to White, "law is not a science- at least not the 'social science' some would call it- but an art."46 As writers, therefore, White believed that lawyers should approach the drafting of legal argument and the interpretation of judicial opinion with the same creative bent with which an author approaches a text. Moreover, according to White's logic, the study of literature could only contribute to a lawyer's practice of the law.
Michael Pantazakos believes that White's comments signaled a transformation of the study of Law and Literature from what had once been a marginal pastime to a
"serious" academic endeavour. He goes on to note the occurrence of three "Special
Sessions" of the Modern Language Association between 1976 and 1978 which ultimately spawned the broadly subscribed Law and Humanities Institute.47 With the establishment of two significant legal journals devoted to Law and Literature,48 the exponential rise in
Law and Literature instruction at American law schools, and the significant academic output by some of the movement's most influential scholars, Law and Literature had assured two certainties. Firstly, it had assumed a position as one of the most significant movements to emerge from the period alongside Law and Economics and Critical Legal
Studies. Secondly, practitioners of Law and Literature tended to focus on two distinctly different points of inquiry that would define much of the debate within and without the movement to this day.
James Boyd White, The Legal Imagination: Studies in the Nature of Legal Thought and Expression (Boston: Little, Brown & Co., 1973) at xxxiv-xxxv. 47 Supra note 39 at 39. 48 Two of the most active Law and Literature journals are the Cardozo Journal of Law and Literature and the Yale Journal of Law and the Humanities. 15
2. The Law and Literature Movement
It is generally accepted that the Law and Literature movement divides itself into two distinct schools of thought: law in literature and law as literature. Beyond this point, however, each strand has the potential for manifold subdivisions along lines either thematic or based on specific subject matter. For the purposes of both simplicity and clarity, I have adopted the divisions set out by Gary Minda in his survey of the movement. What follows is a discussion of each strand, its central tenets, and major criticisms. a. The Law In Literature
The law in literature approach is the contemporary manifestation of Wambaugh and Wigmore's early work examining legal references in the Great Books of classical literature. Like Wambaugh and Wigmore, scholars practising in literary jurisprudence
(Minda's term) believe that literature can have a humanizing effect on the reader.50 This is achieved not only by examining the lawyer's representation in literature but by exploring the literature itself for "standard legal themes [...] such as revenge or guilt" as well as interpretive strategies such as "intentionalism, formalism, and objectivity."51 Of those works studied within law in literature, the initial trend was to use works of classical literature, reflecting Wigmore's concentration on the "Great Books", however recent studies have challenged the notion of cannon and injected works of a more contemporary nature into the critical discourse. As a result, a piece of writing on law in literature could examine a variety works ranging from Franz Kafka's The Trial, Herman Melville's Billy
49 Supra note 13 at 149. 50 Supra note 32 at 1064. 51 Supra note 13 at 150. 16
Budd, Sailor, Dostoevsky's The Brothers Karamazov, Shakespeare's The Merchant of
Venice, Toni Morrison's Beloved, or even Beatrix Potter's The Tale of Peter Rabbit.52 Of those scholars practising in the area of law in literature probably the most noted is
Cardozo Law School's Professor Richard Weisberg. Not only has Weisberg acted as something of a mentor within the movement and fostered its growth through his role with the Cardozo Journal of Law and Literature but his work entitled The Failure of the Word is widely regarded as a model for this form of scholarship.
Although admittedly limited in his focus, Weisberg's writing is emblematic of the general themes found in the law in literature approach. Indeed, among other literary jurisprudes, his is the approach closest to that first advocated by Wigmore. Weisberg believes that an examination of how legal subjects and legal issues are represented in the
"Great Books" of Western literature provides scholars with "a potential gold mine of knowledge about the law" in the following four areas: "how a lawyer communicates, how a lawyer treats people and groups outside the power structure, how a lawyer reasons, and how a lawyer feels."54 In his research, Weisberg mirrors Wigmore by compiling a list of works that he believes "exemplify" not only a literary jurisprudence but the ability of classical literature to suggest the ideals that should be found in the practice of law.55
That being said, it is somewhat ironic that his most significant writing employs literature to explore instances where the law's ideals are noticeably absent.
In "How Judges Speak: Some Lessons on Adjudication in Billy Budd, Sailor with an Application to Justice Rehnquist", Weisberg proposed "the then eccentric notion that a
52 Supra note 32 at 1067. 53 Supra note 13 at 150. 54 Richard Weisberg, Poethics: And Other Strategies of Law and Literature (Hew York: Columbia University Press, 1992) at 34-35. See also supra note 13 at 150. 55 Ibid, at 35. 17 story by a later nineteenth-century American novelist might have great relevance to late twentieth-century American law."56 Melville's novella recounts the events of the summer of 1797 which lead to the title character being charged with the capital offence of striking a senior naval officer at a time of war following the death of the ship's master- at-arms John Claggart. Weisberg, however, is not intrigued with the events themselves but the manner in which they are conveyed at Billy Budd's court-martial by the
Bellipotent 's Captain Vere.
Vere is under the belief that the control of his ship hangs in the balance of Budd's guilt or innocence. What is startling is that Vere's success at trial is not based on the legal merits of the case but on a control of information and rhetoric that Weisberg terms
"considerate communication".57 Ultimately, Vere's effective and selective use of rhetoric enables him to convince not only the panel but, as Weisberg suggests, Melville's audience as well that the only logical finding is that of guilt.58 This is accomplished by highlighting the treacherous circumstances confronting the military as evidenced by an account of the recent "Great Mutiny" at the Nore with the inference being that further problems will occur unless this sentiment is stomped out with Budd's conviction and subsequent hanging. Additionally, Vere withholds a significant mitigating circumstance of provocation on the part of Claggart from the panel's consideration. Invariably, the panel's decision as well as that of Melville's reader is both obvious and necessary, guilty.
As demonstrated in the above example, Weisberg uses considerate communication to explore the "information control" that exists in communication "from
56 Richard H. Weisberg, "Three Lessons from Law and Literature" (1997) 27 Loy. L.A. L. Rev. 285 at 288. 57 Richard H. Weisberg, "How Judges Speak: Some Lessons on Adjudication in Billy Budd, Sailor with an Application to Justice Rehnquist" (1982) 57 N.Y.U.L. Rev. 1 at 36. 5BIbid. 18 people with greater amounts of vital information - call them 'authorities' - to people with less - call them 'the audience.'"59 In order for this communication to be "considerate"
Weisberg sets out three prerequisites:
(1) that the communicator's perception of the audience's well-being stand[s] uppermost in his mind, whatever the ancillary motivations for the speech; (2) that whatever factual distortions occur because of that perception involve predominantly omissions, or, at the worst, trivial misstatements of fact; and (3) that the communicator faithfully convey the essence of the underlying reality he is discussing [...], despite the omissions or mild misrepresentations."60
Weisberg asserts that the "necessity for and tolerance of considerate communication are directly proportionate to the contentiousness of the subject matter of the utterance."61
The most significant revelation to emerge from Weisberg's writing on considerate communication is its potential application outside of the literary sphere. Indeed, as alluded to in its title, the second portion of Weisberg's How Judges Speak applies a considerate communication analysis to Justice Rehnquist's (as he then was) ruling in
Paul v. Davis.62 In that case, the respondent Edward Davis was arrested in Louisville,
Kentucky on a charge of shoplifting to which he pleaded not guilty. Subsequent to his arrest, the charge was stayed and the state chose not to pursue the prosecution further.
The reason for this litigation was not the charge itself but the fact that the appellants
McDaniel and Paul, police chiefs for Jefferson County and Louisville, Kentucky, included Davis' mug-shot in a flyer of "Active Shoplifters" that was distributed to merchants in Louisville and Jefferson County. The flyer, as Weisberg notes, "was composed not only of persons actually convicted of shoplifting, but included persons who
Supra note 56 at 288. Supra note 57 at 34. Supra note 56 at 290. 424 U.S. 693 (1976). 19 had merely been arrested for shoplifting either in 1971 or 1972."63 Upon learning of his inclusion in this flyer, Davis commenced his action against Paul and McDaniel.
What is interesting about Weisberg's considerate communication analysis is his demonstration of how Justice Rehnquist is able to alter what one might have assumed to be an obvious outcome through the conscious use of language64, rhetoric65 and narrative structure.66 Three excellent examples illustrate this point. Firstly, in the face of the legal presumption of innocence, Justice Rehnquist casts an "aura of suspicion" over Davis' arrest by stating that "his guilt or innocence [...] had never been resolved". Secondly,
Justice Rehnquist's procedural analysis questions Davis' "strange" choice of pursuing his litigation in federal, as opposed to, state court. In so characterizing this choice,
Weisberg suggests that Rehnquist "makes Davis out to be almost a buffoon, or worse, an alien to our system of law."69 Thirdly, Weisberg notes how Justice Rehnquist's careful organization diffuses the potential sympathy one might have for Davis and, instead,
"seeks to convince coolly."70 Like others who employ considerate communication,
Weisberg suggests that Rehnquist is aware "that structure (Cardozo's 'architectonics') is as forceful as logic when a given situation might take an audience either way."71
Inevitably, Justice Rehnquist's deft use of considerate communication allowed the
Supreme Court to navigate a line of precedent without overturning a single case and quash the appeal of an otherwise sympathetic individual who one might have logically
63 Supra note 57 at 44. 64 Supra note 57 at 46. 65 Supra note 57 at 49-52. 66 Supra note 57 at 52-58. 67 Supra note 57 at 45. 68 %?ra note 57 at 48. 69 Supra note 57 at 48. 70 Supra note 57 at 52. 71 Supra note 57 at 52. 20 believed to have been defamed prior to reading Justice Rehnquist's opinion. This, however, is not Weisberg's most compelling example of considerate communication.
A more affecting application of considerate communication occurs in Weisberg's later writing where he describes how it was employed in Vichy France. As he suggests, the atrocities inflicted by Nazi Germany on French Jews have often been viewed in the post-WWII period in the purely physical terms of the "masses of bodies" found within the horrid death camps of Europe.73 Unfortunately, as Weisberg illustrates, there were also significant insistences of rhetorical violence inflicted not by soldiers but by French lawyers, functionaries and courts who wrote, interpreted and applied discriminatory legislation. Weisberg suggests two examples illustrate the conscious manipulation of law through language.
The first of these stems from the law of June 2, 1941 which came to be known as the Statut des juifs. The intent of this law, Weisberg states, was "to eliminate Jewish property ownership and to restrict or even eliminate Jewish participation in many professions and trades."74 This was assisted by the statute's definition of what constituted a "Jew".75 In the ensuing interpretation and application of the statute,
Weisberg notes that "the French could be fully counted on to provide the legalistic basis
Supra note 57 at 56. Supra note 54 at 143. Supra note 54 at 146-147. The Statut des juifs provides the following definition 1. A Jew is: He or she, of whatever faith, who is an issue of at least three grandparents of the Jewish race, or of simply two if his/ her spouse is an issue herself/himself of two grandparents of the Jewish race. 2. He or she who belongs to the Jewish religion, or who belonged to it on 25 June 1940, and who is the issue of two grandparents of the Jewish race. Nonaffiliation with the Jewish religion is established by proof of belonging to one of the other faiths recognized by the State before the law of 9 December 1905. The disavowal or annulment of recognition of a child considered to be Jewish is without effect as regards the preceding sections. Supra note 54 at 147. 21 and the means to rid France of Jews."76 Weisberg asserts that French lawmakers, lawyers and courts used the law's language to injure Jews through the application of an onerous burden of proof77 placed on alleged Jews and broad interpretations of the law itself. Weisberg recounts instances where a court's definition of one's "Jewishness" led to their "guilt" and often their death.78 In the end, Weisberg makes clear the life and death implications of how both the law and the words that compose it were interpreted.
Weisberg's second example stems from a law that predates the Statut des juifs.
On September 26, 1939, the French government declared that "any tenant who had been mobilized for the war could benefit from a 75 percent reduction in rent during the period of his military service."79 Additionally, Weisberg notes that the law provided for tenants to request rent reductions even after being mobilized if there were adversely affected
"economically or otherwise" by a "circumstance of war".80 The legal gymnastics of considerate communication occurred when the French lawyers and courts tried to reconcile this declaration which lacked any mention of race with the subsequent discriminatory Statut des juifs. Weisberg describes incidents where lawyers and courts argued over "whether unemployment, detention, or deportation constituted a
'circumstance of war'".81 In one such case, the court decided that a detainee at the
Beaunes la Rolande camp was entitled to a 75 percent rent reduction during his mobilization and a 50 percent rent reduction during his internment. In its reasons,
Weisberg notes that the court distinguished the detainee's arrest by the "Occupying
76 %?ra note 54 at 151. 77 %?ra note 54 at 150. 78 Supra note 54 at 153-158. 79 Supra note 54 at 158 citing Gazette des Tribuneaux, October 20,1939. 80 Supra note 54 at 158 citing Judgment of April 2,1942, J.P., Paris-20th Arrondissement, Gazette des Tribuneaux, no. 50; December 6-12,1942 (CDJC no. CDXXDC-2). 81 %>ra note 54 at 159. 82 Swpra note 54 at 160. 22 authorities" as an act of war instead of being considered a state action because it occurred prior to the enactment of the Statut desjuifs. Weisberg suggests that this is a significant manifestation of considerate communication on the part of the Vichy regime for two reasons. The first is that by characterizing the arrest as coming at the hands of
"Occupying authorities" the court failed to acknowledge the reality that it was "the
French police [who] did almost all the actual detaining of Jews until mid-1944."83
Additionally, Weisberg suggests that the courts' use of "Occupying authorities" in their opinions diverted the public's gaze from the reality that "the French (without German help) were arresting Jews both in the occupied and unoccupied zones, by force of their own statutes."84 Weisberg's research suggests that the conscious manipulation of language through considerate communication is often one of the most effective weapons the law can wield.
Weisberg's study of literature and law leads him to the conclusion that, at their heart, both disciplines are inherently structured by narrative. As a result, a lawyer's success in practice demands an effective understanding of decoding and applying effective legal rhetoric, a process Weisberg calls the poethic method.85 According to this method, Weisberg asserts that the "holding" of a case is directly tied to the words used in its expression. Furthermore, given the importance of words in this context, "[h]ow an opinion means [...] is more important than what it means." Ultimately, Weisberg believes that a lawyer's study of literature will not only expose her to the ideals of legal
Supra note 54 at 161. Supra note 54 at 161. Supra note 54 at 5. Supra note 54 at 7. 23 practice but illustrate the effective use of language and rhetoric so that she might employ the same in their practice.87
b. Criticism of Law in Literature
The law in literature approach has elicited significant criticism from outside the
Law and Literature community as well as among its many practitioners. Jane Baron cites three notable points of contention. The first is the claim that reading literature will necessarily make a lawyer a more humane practitioner. As she astutely notes, "[s]urely many an insensitive brute has read great books without becoming one whit less insensitive or brutish."88 Baron also questions why lawyers necessarily need to read literature when other disciplines such as "psychology, cognitive theory, or ethics" could have a potentially equal benefit.89 Furthermore, she questions the presumption that the humanization of a profession should necessarily be limited to that of the law by noting the presence of the medical humanities movement.90
In her second criticism, Baron raises the question of what works should be included in the Law and Literature canon. It would be an understatement to suggest that issues surrounding the selection of works to be studied are at the heart of what drives both sides of the Law and Literature debate, but its application to the law in literature approach specifically relates to Weisberg's "Great Books" approach and his choice of works that should constitute any significant Law and Literature class.9! Of those challenging the representation of outsider voices within the Law and Literature "canon",
87 Weisberg sets out the characteristics of literature's great lawyers as benchmarks for actual practice. See supra note 54 at 34-46. 88 Supra note 32 at 1066. 89 Supra note 32 at 1066. 90 Given Baron's criticism, it is somewhat interesting to note that Dalhousie Medical School has had a long standing medical humanities program while no comparable entity exists within Dalhousie Law School. 91 %?ra note 54 at 117. 24 noted feminists and Critical Race Theorists such as Robin West, Carolyn Heilbrun and
Judith Resnik,93 and Richard Delgado94 all suggest that the stories we tell need to be more representative in order to have a greater benefit for all readers. For his part,
Weisberg acknowledges, although rather dismissively,95 these critiques of his canon- making exercise. He even goes so far as to suggest that, although he includes work by a woman of colour (Toni Morrison's The Bluest Eye) in his "canon", the "Great Books" of
English literature are sufficiently representative so as to encompass outsider themes regardless of the presence of an outsider voice or character.96 While Weisberg's comments illustrate the reasons that precipitated Baron's criticism, the recent work of individuals such as Heilbrun, West, and, in particular, Delgado have made the Law and
Literature enterprise much more representative of outsider voices or at the very least aware of the need to be representative.
Baron's last area of criticism seems more like a thinly veiled attempt by opponents of Law and Literature to question the academic rigours of the law in literature approach rather than the method itself. Critics, she suggests, view this approach with a certain degree of contempt suggesting it to be more an amusing parlor trick of tenuous
92 Robin West, "Toward Humanistic Theories of Legal Justice" (1998) 10 Cardozo Stud. L. & Lit. 147. 93 Carolyn Heilbrun and Judith Resnik, "Convergences: Law, Literature, and Feminism" (1990) 99 Yale L.J. 1913. 94 Richard Delgado, "The Imperial Scholar: Reflections on Civil Rights Literature" (1984) 132 U. Pa. L. Rev. 561. See also Richard Delgado & Jean Stefancic, "Why Do We Tell the Same Stories?: Law Reform, Critical Librarianship, and the Triple Helix Dilemma" (1989) 42 Stan. L. Rev. 207. 95 In responding to Carolyn Heilbrun's claim that Law and Literature lacks a significant feminist voice, Weisberg states: "I take Heilbrun to be ignorant of the very strong feminist influences in Law and Literature and to mean, by criticizing it as 'a male domain,' not so much its cast of characters as its choice of texts." Supra note 54 at 119. 96 Supra note 54 at 120. 25 connections between two disciplines than valid scholarship.97 This is evidenced, she notes, in the highly formulaic approach with which most scholars approach their inquiry:
The typical essay begins with an assertion about the connection between literature and law- a statement, usually, of what literature can teach lawyers. It then proffers a work of literature that will demonstrate the connection and teach the lesson. There follows a summary of the plot and, where appropriate, the characters. Then comes the most difficult step, as the message of the literary work for law is drawn out. Here we find a close examination of a particular passage or turn of the plot and what that passage or turn "means". From the particular, we move back to the general, where- to no one's surprise- we find that the promised connection has been made, the lesson taught.98
While Baron does not provide an alternative approach to avoid such criticism she does suggest an explanation. Baron asserts that the Law in Literature approach is premised on the distillation of an identifiable "message" from works of literature that often refuse such singular interpretation.99 This often results in critics claiming authority over one interpretation when an equally plausible alternative exists. The problem, if one can call it that, is not with the method itself but with the medium it explores and the reader's creative interpretation thereof. As such, the scholar's inability to provide a conclusive explanation is not a failure of methodology but is more properly viewed as indicative of poor scholarship.100
97 Supra note 32 at 1068. 98 Supra note 32 at 1068-1069. 99 Supra note 32 at 1072. 100 In his work The Truth About Stories, University of Guelph Professor of English and Native literature Thomas King notes that success in the area of English literary scholarship is not due to absolute proof but an individual's ability to persuade using inference, suggestion and sometimes rather tenuous facts. See Thomas King, The Truth About Stories, (Toronto: House of Anansi Press, 2003). 26
c. The Law as Literature L Narrative Scholarship
If the law in literature strand has been criticized for its simplicity, the same would certainly not be said for its counterpart, the law as literature. The second half of the Law and Literature equation grew out of James Boyd White's belief that law should not be viewed as a science but instead as an ever-evolving creative activity.101 The law should be read with consideration of not only its intended or, as White suggests, "ideal"102 reader but also with careful consideration to the choice of voice and rhetoric employed by its author in whatever form the law may emerge as a performative activity. This has led to innovative legal analysis of the trial as a dramatic performance,103 the narrative implications of evidentiary rules,104 and the role of myth in the practice of law.105 Jane
Baron and Julia Epstein conclude in their rhetorically framed "Is Law Narrative?", that the law is fundamentally a process of storytelling that generates both "narrative" and
"literary" stories which find their way into judicial decisions as well as law review articles.106 For those practising within the law as literature approach, the tools of literary criticism and theory are essential to understanding the stories the law produces.
Baron and Epstein's "narrative" and "literary" division signifies the two unique approaches within the law as literature strand. Among those Feminist, Critical Disability
101 James Boyd White, "Law as Language: Reading Law and Reading Literature" (1982) 60 Tex. L. Rev. 415 at 441. 102 Ibid at 430. 103 Milner S. Ball, "Fictions of Law: All the Law's a Stage" (1999) 11 Cardozo Stud. L. & Lit. 215. 104 Lenora Ledwon, "The Poetics of Evidence: Some Applications from Law & Literature" (2003) 21 Quinnipiac L. Rev. 1145. See also Gretchen A. Craft, "The Persistence of Dread in Law and Literature" (1992) 102 Yale J. on Reg. 521. 105 Donald C. Langevoort, "Taking Myths Seriously: An Essay For Lawyers" (2000) 74 Chi.-Kent. L. Rev. 1569. 106 The authors differentiate literary stories as "those which are deliberately both artful and Active" from narrative stories which "signify a broader enterprise that encompasses the recounting (production) and receiving (reception) of stories." Jane Baron and Julia Epstein, "Is Law Narrative?" (1997) 45 Buff. L. Rev. 141 at 147. 27 and Critical Race Theorists practising narrative jurisprudence, University of Pittsburgh law professor Richard Delgado's work has proven to be amongst the most influential.
Beginning with his controversial essay entitled "The Imperial Scholar: Reflections on a
Review of Civil Rights Literature"107, Delgado articulated the necessity for marginalized voices to exist within legal discourse because they were "able to tell stories different from the ones legal scholars usually hear."108 For Delgado, these "chronicles, parables, and narratives" are used to "explore ideology and mindset", "prob[e] the dominant narrative", and "examine presupposition, the body of received wisdoms that pass as truth but actually are contingent, power-serving, and drastically disadvantage [marginalized people]."109 Delgado and his counterparts fundamentally challenged the approach taken thus far towards Law and Literature not only by infusing new voices into the narrative but also by introducing a new manner in which to accomplish the task.
Delgado identifies three kinds of storytelling within the narrative approach that legal scholars may take.110 The first is that of the "agony" tale, or as Minda defines it,
"anecdotal evidence"111 (note the significant difference in tone between scholars). This is generally a first-person account that expresses outrage stemming from a social problem such as race or sex discrimination.112 A well known example comes from Critical Race
Theory scholar Patricia Williams who describes a visit to a high-end clothing chain in
New York.113 While in the store, Williams witnessed various anti-Semitic comments by
107 Supra note 94. 108 Richard Delgado, "When a Story is Just a Story: Does Voice Really Matter" (1990) 76 Va. L. Rev. 95. 109 Richard Delgado, "Rodrigo's Final Chronicle: Cultural Power, The Law Reviews, and the Attack on Narrative Jurisprudence" 68 S. Cal. L. Rev. 545. l™Ibid, at 551. m%wanotel3atl56. 112 Supra note 104 at 552. 113 Patricia Williams, The Alchemy of Race and Rights: Diary of a Law Professor (Cambridge: Harvard University Press, 1991). 28 the staff but chose to say nothing. Her article goes on to use this experience to comment on the more general issue of racism and its perpetuation through silence.
Delgado's second type of storytelling is that of the "counterstory" which is a story
"that mocks, jars, displaces, or attacks some majoritarian tale or narrative..."114 While these stories range from the obviously fictional to the more believable, the intent of their authors is that they have an equal rhetorical weight. This is evidenced by comparing two of the most famous counterstories by noted Critical Race Theorists Derrick Bell and
Delgado.
In "The Space Traders", Derrick Bell, the former Harvard and current N.Y.U law professor, recounts a fantastic tale where aliens descend to earth and provide the
American people with an offer they seemingly cannot refuse. In exchange for unfathomable wealth, the cure to all known disease, and a solution for the earth's ozone layer problem (amongst other items) all the aliens ask for in return is that the entire
African-American population leave with them for a new extra-terrestrial home.115 In the ensuing pages of Bell's story, he describes the rationale adopted by the American leadership in determining whether they should accept such an offer as well as attempts to hide certain prominent African-Americans "underground" so as to escape detention. The shock of this story occurs the moment the reader realizes that the "Space Traders" are strikingly similar to the slave traders of America's past. The most troubling point for
Bell, however, is the fact that many would still contemplate such an arrangement thereby proving that racism still exists in current-day America.
114 Supra note 109 at 552. 115 Derrick Bell, Faces at the Bottom of the Well: The Permanence of Racism, (New York: Basic, 1992) at 158-194. 29
A second example of counterstory may be found in a series of "chronicles"
Delgado published in several law reviews which were eventually collected in a book entitled The Rodrigo Chronicles. These stories are based on a series of fictional meetings between an unnamed law professor from a "well-known school" and his young protege named Rodrigo Crenshaw.116 Delgado chronicles this mentoring relationship from
Rodrigo's days as a graduate student to a final meeting at the meetings of the American
Association of Law Schools following his successful faculty appointment. Along the
117 way, both characters discuss topics ranging from discrimination within the law school and intersectionality118 to institutional and academic challenges facing scholars wishing to work in narrative jurisprudence.119 Like Bell's narrative, Delgado's characters are also fictional but the shock occurs when the reader acknowledges that the challenges faced by
Rodrigo are actually quite real.
Delgado's third type of storytelling simultaneously acknowledges the narrative quality of legal discourse while also questioning the validity of many of its stories.
According to Delgado, "majoritarian" stories are those told by the White majority "[b]ut they don't seem like stories at all, just the truth."120 Delgado cites an example of this tale in the often expressed "majoritarian" story that "affirmative action ends up stigmatizing and disadvantaging able blacks..."121 Exploring these narratives challenges the reader not only to question the authenticity and veracity of dominant legal narratives but also to 116 Delgado's choice of name is not coincidental. Not only does he reference noted Critical Race Theory academic Kimberle Crenshaw but, in homage to Bell, Delgado has created Rodrigo as the younger half- brother of Bell's fictional civil rights lawyer Geneva Crenshaw. 117 Richard Delgado, "Rodrigo's Fourth Chronicle: Neutrality and Stasis in Antidiscrimination Law" (1993) 45 Stan. L. Rev. 1133. 118 Richard Delgado, "Rodrigo's Sixth Chronicle: Intersection, Essences, and the Dilemma of Social Reform" (1993) 68 N.Y.U.L Rev. 639. 119 Supra note 109 at 545. 120 Supra note 109 at 553. 121 Supra note 109 at 553. 30 explore the possibility of other available, yet opposing, narratives. As such, Delgado suggests that an examination of "majoritarian" stories not only questions their underlying doctrine but provides a potential source for counterstory. It should be noted, as Delgado does, that the resulting counterstories face many more challenges than the supposed truths from which they emerged.
iu Hermeneutic Scholarship
The second approach within law as literature arose because scholars began to recognize that "[w]hile law and literature are not exactly the same thing, they share important general qualities, including their reliance on language to construct meaning."123 Given these similarities it would seem logical that the same hermeneutic strategies and theories used to interpret literature could also be applied to legal texts such as cases, statutes, or contracts with the same degree of success. Unlike their law in literature counterparts, however, these hermeneutic scholars "do not argue that lawyers need to read literature"124 Lawyers are instead prompted to explore the writings of noted legal scholars such as Stanley Fish, Owen Fiss, and Robert Cover as well as cultural philosophers such as Michel Foucault, Richard Rorty, and Jacques Derrida. The goal of law as literature scholarship is to have lawyers recognize that their engagement with a legal text is not a passive experience but one that demands an awareness of the interpretive forces at play on the ultimate message.
At the heart of hermeneutic jurisprudence is a debate among scholars surrounding a lawyer's interpretation of a text as well as the authority for arriving at such an
122 Supra note 109 at 553. 123 Marianne Sadowski, '"Language is Not Life': The Chain Enterprise, Interpretive Communities, and the Dworkin/Fish Debate" (2001) 33 Conn. L. Rev. 1099 at 1100. 124 Supra note 32 at 1065. 31 interpretation. According to Stanley Fish, a text does not have a fixed, identifiable meaning. Instead, a reader's interpretation of the text is shaped by, and because of, their place within an "interpretive community" of individuals who share similar social and, thereby, interpretive backgrounds.125 Fish's theory explains how several readers can derive the same meaning from a text as well as how subsequent readers "can construct texts arguably coherent with previous texts because earlier and later authors belong to the same interpretive community (which changes over time but possesses recognizable foundations)."126 For Sanford Levinson, the role of interpretation is essentially linked to the question of political power. In his essay entitled Law as Literature, Levinson tries to resolve the reality of an ever-evolving language with the intent of legal framers and those who attempt to interpret these laws in a contemporary legal reality.
The role of a reader's place within an interpretive tradition plays a significant role for another hermeneutic critic, Ronald Dworkin. Like Fish, Dworkin's theory provides for the explanation of continuity in legal interpretation but, unlike Fish, Dworkin does not believe that the reader engages a "clean" text anew with only their interpretive preconditions. Instead, Dworkin views the evolution of legal texts, specifically judicial opinions, like chapters within a "chain" novel.128 According to Dworkin's theory, judicial interpretation is very similar to a situation were a group of writers randomly select the order in which they will contribute to a work. After the first person has completed their chapter it is sent in sequence to the following writers who contribute their chapter only after having read each of the previous chapters. Each writer attempts to
125 Stanley Fish, "Interpretation is Not a Theoretical Issue" (1999) 11 Yale J. L. & Human. 509 at 509-510. 126%?ranotel23atlll3. 127 Sanford Levinson, "Law as Literature" (1982) 60 Tex. L. Rev. 373. 128 Ronald Dworkin, "Law as Interpretation" (1982) 60 Tex. L. Rev. 527 at 540. 32
remain consistent with what has preceded her while simultaneously trying to build on the
earlier chapters. This, Dworkin suggests, is very similar to the task of a judge who is
always cognizant of what has been written on that point of law before adding to the
discourse themselves:
Each judge must regard himself, in deciding the new case before him, as a partner in a complex chain enterprise of which these innumerable decisions, structures, conventions, and practices are the history; it is his job to continue that history in the future through what he does on the day. He must interpret what has gone before because he has a responsibility to advance the enterprise in hand rather than strike out in some new direction on his own. So he must determine, according to his own judgment, what the earlier decisions come to, what the point or theme of the practice so far, taken as a whole, really is.129
For many hermeneutic scholars, a discussion of interpretation gives rise to more fundamental questions than the choice between different interpretive models. This debate examines the nature of interpretation in both its legal and literary contexts. Dworkin was one of the first scholars to explore this debate in his 1982 article entitled "Law as
Interpretation"130 wherein he asserted that the law as expressed by lawyers was not merely descriptive of bare legal fact. Instead, he suggested that:
propositions of law are not simply descriptive of legal history in a straightforward way, nor are they simply evaluative in some way divorced from legal history. They are interpretive of legal history, which combines elements of both description and evaluation but is different from both.131
Additionally, he proposed that legal discourse possessed a necessary aesthetic quality which challenged lawyers to continually refine their expression of statute or case law to provide the most accurate reading. Not only did these assertions support his "chain" novel approach to the law as explained above, but it suggested that law was a process of interpretation that considered its dual aesthetic and historic elements.
Ibid, at 543. Supra note 117. Supra note 117 at 528. 33
Other critics have been unwilling to view the practice of law as a passive interpretive exercise. Instead, they see the law as an active imposition of control and, at its most basic, the infliction of violence. In his 1986 article, Violence of the Word, the late Yale University professor of law Robert M. Cover asserted that the law's use of language is fundamentally different from that of literature. Unlike literature's mere representational quality, Cover suggests that the law's use of language establishes the foundation upon which a defendant is either set free or receives punishment.
Accordingly, for Cover, "[l]egal interpretation is a practical activity, designed to generate credible threats and actual deeds of violence, in an effective way."
Cover explores the above concept in three parts. Firstly, while he accepts the practicality that legal interpretation serves in defining legal and social meaning, Cover asserts that viewing legal interpretation in this manner is one-dimensional. Legal interpretation, according to Cover, is more accurately viewed as a "mandate for the deeds of others."133 Citing H.L.A. Hart's principle of "secondary rules", Cover goes on to explain that "there are or may be rules and principles which describe the relationship between the interpretive acts of judges and the deeds which may be expected to follow from them."134 Because of these "secondary rules", Cover suggests that legal interpretation is necessarily practical because it must be explored with "an understanding of what others will do with such a judicial utterance and, in many instances, an
132 Robert M. Cover, "Violence of the Word" (1986) 95 Yale LJ. 1601 at 1610. See also Robin West, "Adjudication is not Interpretation: Some Reservations About the Law-as-Literature Movement" (1987) 54 Tenn. L. Rev. 203. mIbid at 1611. 134 Supra note 132 at 1612. 34 adjustment to that understanding, regardless of how misguided one may think the likely institutional response will be."135
In his second part, Cover's exploration of the capacity for legal interpretation to compel violence stems from the very logic which explains the law's existence: "Were the inhibition against violence perfect, law would be unnecessary; were it not capable of being overcome through social signals, law would not be possible."136 Thus, employing the findings of Stanley Milgram's Obedience to Authority, Cover illustrates how the legal system's hierarchical social structure permits individuals to suspend their tendency towards autonomy and act "agentically" in their commission of legal violence by responding to "institutionally sanctioned commands, orders, or signals of institutionally legitimated authorities characteristic of human hierarchical organization." Legal interpretation compels, Cover suggests, because whether or not we as a society accept the judicial interpretation provided by the court we still accept the structure that generates the opinion and respond accordingly because of this acceptance.
Lastly, Cover notes that, for legal interpretation's violence to be effective, a judge must establish the "conditions of effective domination" in their decision. This is because, unlike other forms of violence where the locus of domination and suffering is the same, the judge's act of domination inside the courtroom compels the prisoner's suffering imposed outside of it. Absent these conditions of domination in a judicial decision,
Cover states that "our understanding of the law will be adjusted so that it will require only that which can reasonably be expected from people in conditions of reprisal,
Supra note 132 at 1612. Supra note 132 at 1613. Supra note 132 at 1615. 35
resistance and revenge, or there will be a crisis of credibility."138 The "conditions of
effective domination", therefore, are present not only to facilitate the prisoner's
punishment but also to compel the actions of other actors within the justice system.
d. Criticism of Law as Literature
The law as literature approach has also provoked a significant amount of debate
amongst its supporters and detractors. Once again, Jane Baron has identified the various
strands of this debate. The first of these concerns the narrative aspect of law as literature
discourse and its associated three narrative frameworks: the agony tale, majoritarian
storytelling, and the counterstory. While each frame of reference may prove to be an
illuminating tool on its own, Baron notes that they often conflict with each other.139
Citing one such example of this, Baron notes that "[e]videntiary storytelling... is meant to show something true, but previously unnoticed, about the world, whereas the telling of multiple stories is meant to challenge the idea of objective truth."140 Given all the possible permutations, the internal debate gives rise to the claim the various strands ultimately cancel each other thereby nullifying the debate itself.
With her second area of criticism, Baron is less specific in identifying conflict but rather suggests what amounts to a more encompassing debate. She notes that, as
demonstrated above, there is little agreement among scholars as to the most appropriate narrative or hermeneutic methodology. While this debate may be, in and of itself,
important to a further critical understanding of the law and legal literature it, coupled with the mere presence of law in literature scholarship, has proven to be fodder for critics
Supra note 132 at 1616-1617. Supra note 32 at 1071. Supra note 32 at 1071. 36 who suggest that this dissention in the ranks questions whether Law and Literature can even be considered a movement. This criticism falls into two camps. The first attacks the myriad of approaches that Law and Literature scholars employ in their analysis by suggesting that this apparent internal division only represents confusion or, at best, questionable connections between otherwise unrelated disciplines.141 The second, led by the noted Law and Economics scholar Judge Richard Posner, concedes that while the study of literature may have a place within the law school it is, however, only in the limited capacity of providing a balance "to the highly technical legal studies in which students become immersed and which socialize them into the folkways of the profession."142 Literature, according to Posner, has little to offer law outside of a leisure pursuit. As Posner asserts, lessons potentially gleamed from areas such as hermeneutic scholarship and literary jurisprudence are of no value because they bear little similarity to the actual practice of law. In a rather predictable conclusion, Posner closes with the observation that economics, and not literature, has more to offer the law.143
3. Conclusion
Law and Literature has emerged as one of the most eclectic and interesting areas of contemporary legal scholarship. Its varied approaches challenge students, scholars and practitioners alike to view literature as complementary to the analysis and practice of law.
Whether by way of prescription through the informal practice advice found in a law in literature approach or a more philosophical and theoretical challenge of hermeneutic and
141 Supra note 32 at 1071-1072. See also James Boyd White, "Law and Literature: 'No Manifesto'" (1988) 39 Mercer L. Rev. 739. 142 Richard A. Posner, "Remarks on Law and Literature" (1992) 23 Loy. U. Chi. L.J. 181 at 182. 143 Ibid, at 195. 37 narrative analysis, Law and Literature scholarship has proven to be a positive addition to legal academia. This is evidenced by the significant contributions of American Law and
Literature scholars who have defined the debate and provided copious examples of scholarship over the last thirty years. As this area of scholarship continues to grow, it is interesting to note the growth of a uniquely Canadian Law and Literature scholarship as well as the related cultural references. In my second chapter I will examine how uniquely
Canadian cultural and pedagogical influences shaped the late emergence of Law and
Literature and its current practice in Canadian law schools. 38
Chapter 3: Legal Fictions: Canadian Law and Literature
/. Introduction
In his 2001 essay entitled "Raising Raced and Erased Executions in African-
Canadian Literature: Or, Unearthing Angelique", George Elliott Clarke asserts that
"Canada presents, as usual, an alternative story, one seemingly more benign than the
American narratives of black and white."144 For the purposes of Clarke's essay, the absence of an African-Canadian criminal narrative is a significant, yet correctable, injustice. As I will suggest in this chapter, however, the erasure of legal narratives within
Canadian literature actually extends well beyond that limited but important area of inquiry. To again quote Clarke, "America is not always an enlightening mirror for
Canada [,..]."145 This is certainly the case when one contrasts the copious tradition of legal literature in the United States with the comparably limited chronicling of this important social dimension within Canadian culture that has, only relatively recently, received significant creative and a growing critical attention. As Ferguson notes within his excellent survey "Law and Letters in American Culture," a survey of early American legal practice and early American literature reveals both to be fundamentally intertwined.
As a tool for practice in the former and a means of inspiration and societal change in the latter, the relationship between law and literature has been a lengthy one that continues to
George Elliott Clarke, "Raising Race and Erased Executions in African-Canadian Literature: or, Unearthing Angelique" in Camille A. Nelson and Charmaine A. Nelson, eds., Racism, Eh?: A Critical Inter-disciplinary Anthology of Race and Racism in Canada (Concord, Ont: Captus Press, 2004) 66 at 67. 145 Ibid, at 66. 39 this day in American legal culture. Canada, however, did not proclaim a similar legacy of law within the nation's popular culture until the mid-1900's.
With the notable exception of Nova Scotian jurist and author Thomas Chandler
Haliburton's Clockmaker stories (1836, 1838, and 1840) and Susanna Moodie's brief mention in her frontier chronicles Roughing it in the Bush (1852), there is little, if any, significant mention of legal subject matter in early Canadian literature.147 In the fervor of their early literary efforts, Canadian writers expressed an idealized national image while also perpetuating a myth that their new country was a true manifestation of its constitutive documents: a land of "Peace, Order, and Good Government."148 Certainly this was not always the case as case reporters and archival materials document numerous examples of unrest, disorder, and governments that have brought dishonour to the Crown.
Why, then, did these events not inspire some reflection within the pages of early
Canadian literature? Moreover, what explains the recent upsurge in interest towards legal subject matter by Canadian artists in multiple media including but not restricted to literature? The answers to these questions confirm the very interdisciplinary nature of
146 Supra note 144 at 66. 1471 wish to thank Professors Terrence Craig (Mount Allison), Carrie MacMillan (Mount Allison), Christl Verduyn (Mount Allison), and Andrew Wainwright ([Emeritus] Dalhousie) with whom I spoke regarding the presence, or more accurately the absence, of legal subject matter in early Canadian literature. Haliburton's work chronicled the actions of the fictionalized American character of Sam Slick. Originally serialized in Joseph Howe's the Novascotian, the satirical sketches of contemporary society in Nova Scotia were later collected in a book and spawned two related collections (1836,1838, and 1840) that made Haliburton one of the most widely read authors in North America. Susanna Moodie's Roughing it in the Bush (1852) deals with two specific pieces of legal subject matter. Firstly, Moodie notes the challenges faced by her family in negotiating for land with a woman who still possessed an interest in the land through her dower right. Secondly, she chronicles the lynching of an ex-African-American who had recently married a white settler and the subsequent escape of the men involved back to the American side of the border. The second piece of early Canadian literature is a lesser-known work of detective pulp fiction entitled November Joe by H. Hesketh Pritchard (-1913). The work chronicles the adventures of November Joe, a contract detective with the Quebec Provincial Police. Reflecting the themes of the time, Joe's adventures included tracking criminals through the wilderness with the assistance of natural clues. I wish to thank Professor Simon Stern (University of Toronto) for bringing Pritchard's work to my attention. 148 Supra note 144 at 66. 40 this area of study and reveal an interconnected relationship, however accurately portrayed or not as the case may be, between Canadian literature and the Canadian legal system that will be explored further within this chapter.
The late onset of a Canadian legal literature necessarily149 leads to a related inquiry into the recent rise of instruction in Law and Literature within Canadian law schools. As a significant area of contemporary scholarship in the United States since the
1970's and with roots tracing back to the 1890's, it is remarkable not only that just four schools chose to offer courses in this area in 1995 but that by the 2008 academic year this number had multiplied to include ten law schools: four of which included courses developed in the last four years alone. Unlike the United States which presents a clear evolution from the growth of a native legal literature to an active professional and academic interest therein and later to an integration with contemporary academic theoretical movements, Canada proffers an academic "chicken and egg" scenario that, in part, explains the early approaches taken by Canadian legal academics as well as the content of current curricula. The reasons for this may be explained by viewing the growth of Canadian Law and Literature studies against the larger trends in Canadian law school education. Indeed, the relative absence and later growth of a uniquely Canadian
Law and Literature scholarship proves to be an excellent case study in the larger trends within Canada's law schools. Early Canadian efforts in Law and Literature instruction could be viewed as being responsive to American academic themes where ready-made curricula and research direction was to be found in a much wider array of sources than
Legal literature generally refers to writing intended for legal professionals. In the context of this thesis, legal literature" will be used to describe creative literature that deals with legal themes. 41 could be located north of the border.150 Recently, however, it is significant to note that
Canadian legal academics teaching in this area are not only responding to the significant growth of creative output by Canadian artists but are critically engaging their students with aspects of Canadian legal culture and Canadian society as reflected in their course material. Could this be viewed as a necessarily Canadian step in the growth of a truly
Canadian Law and Literature scholarship? What benefits might this present for students and academics choosing to study in this area? Consequently, what are the potential challenges?
This chapter will be divided into three sections. The first will explore significant trends in Canadian literature that contributed to the relatively late arrival of legal subject matter therein. The second will examine the influences of Canadian legal pedagogy on the late inclusion of Law and Literature courses to Canadian law school curricula. Lastly,
I will survey the current instruction of Law and Literature courses within Canadian law schools.
2. Literary Nationalism and a National Legal Literature
It is interesting to note that eighty years after Stephen Leacock published an article in the Canadian Mercury in 1928, my study of the absence of an early Canadian legal literature as well as the late arrival of Canadian Law and Literature scholarship contained in this chapter would appear to be symptomatic of the chronic condition coined
150 In addition to an identifiable trend in the texts selected to be studied, a pattern in early curricular choices evolved with significant reference to: James Boyd White, The Legal Imagination, rev. ed., (Chicago, University of Chicago Press, 1985), Elizabeth Villiers Gemmette, "Law and Literature: An Unnecessarily Suspect Class in the Liberal Arts Component of the Law School Curriculum" (1989) 23 Val. U.L. Rev. 267, Elizabeth Gemmette, "Law and Literature: Joining the Class Action" (1995) 29 Val. U.L. Rev. 665., and Richard H. Weisberg, Poethics: and Other Strategies of Law and Literature (New York: Columbia UP, 1992). 42
by the late Canadian author and economist as the Canadian syndrome: "Canadians
remained obsessed with the problem of who they were and what they had produced in the way of a national culture. Do we in fact have a national culture, and if not, why not?"151
Given the significant advances made by both our country's writers and academics since
Leacock's literary diagnosis I do not wish that my analysis necessarily revert solely to the
quixotic quest of searching for a national identity in our legal literature. Rather,
cognizant of the debate that Leacock's syndrome described as well as the contemporary
scholarly analysis of early Canadian literature, this section of the chapter seeks to illustrate how the uniquely Canadian trends in our national literature, which in turn reflected larger cultural, political, and legal issue caused not only the virtual absence of legal subject matter in early Canadian literature but also its eventual introduction in the mid-1900's.
As discussed in the previous chapter, one of the primary reasons for the growth of
American legal literature noted by Ferguson was the acknowledged "responsibility" of lawyers to edify the general public.152 As one of the few professions with some sort of recognized education, American lawyers represented a unique source of information within their newly independent country. Ferguson goes on to mention that this edifying role also included a necessarily political purpose. This manifested itself in an approach to literature described by the late Canadianist Robert L. McDougall as literary nationalism. Echoing Leacock's terminology of medical affliction, according to
McDougall, "[ljiterary nationalism is for the most part a disease of young nations."153
While not a literary ideal, literary nationalism is but one necessary step along the path to
151 Supra note 7 at 51. 152 Supra note 14 at 66. 153 Supra note 7 at 53. 43
a more universal national literature. It emerges out of a belief "that a literature must
spring into being which will be commensurate with the nation's physical and spiritual being."154 This, suggests McDougall, leads to a political and cultural imperative:
"literary nationalism calls for the instant making of an indigenous and independent literature."155 In its fervour of nation-building through the literary image, literary nationalism is highly specific in its targeted audience which, McDougall asserts, is not what a great national literature should aspire towards: "[g]reat literature does not speak to the Jew or the Christian, the white man or the black man, the American or the Canadian; it speaks, in so far as many tongues and dialects allow, to the common humanity in all of us."156
Literary nationalism clearly manifested itself in an American context in the wake of the American Revolution and the new nation's subsequent declaration of independence from England. Faced with a new political reality, American artists recognized that
"[c]ultural subservience must go the way of political subservience."157 Indeed, this generated a body of work premised on the concept of an American Adamite mythology characterized by the assertion of Franco-American writer Michel Guillaume Jean de
Crevecoeur in 1782: "the American is a new man, who acts upon new principles; he must therefore entertain new ideas, and form new opinions."158 Those leading this new literary charge were the literate and literary lawyers of the 18th century who were, as Ferguson notes, all men of letters. In the early years of this new republic it is significant to note
Supra note 7 at 53. Supra note 7 at 54. Supra note 7 at 53. Supra note 7 at 54. Supra note 7 at 54. 44
that "many of the country's first important novels, plays, and poems" were composed by
these same lawyers.159
Amidst the political uncertainty of America's initial decades, lawyers assumed the role of "ex officio natural guardians of the laws" and "sentinels over the constitutions and
liberties of the country."160 This, Ferguson suggests, resulted in "a remarkable symbiosis between law and literary aspiration. Indeed, the lawyer as writer dominated the literature
of the early republic because the broad cultural responsibilities of the professional man
and the writer's imperatives could be made to appear the same."161 Literature was not
simply a means for entertainment but was viewed as an exercise in nation building with the American lawyer-author leading the charge: "[the lawyer-author's] voice and pen
served both culture and country in a seemingly endless stream of works instructing and
strengthening the American people in the meaning of republicanism."162 While many of these works were undoubtedly for the amusement of their audience, the co-benefit of edification presented a clearly legal theme. Counting such lawyers as John Dickinson,163
James Otis,164 John Adams,165 Patrick Henry,166 Thomas Jefferson,167 and James
159 Supra note 14 at 5. See William Wirt, Sketches of the Life and Character of Patrick Henry, 2nd ed. (Phildelphia: James Webster, 1818). See infra note 163. 160 Supra note 14 at 25. 161 Swpra note 14 at 25. 162 Supra note 14 at 26. 163 Dickinson was a lawyer trained at the Middle Temple in London and would later become a militia officer in the American Revolutionary War as well as a signatory of the Declaration of Independence. Dickinson was well known in Colonial America as the Penman of the Revolution for his epistolary collection, Letters from a Farmer in Pennsylvania, that argued for the cause of independence. 164 A lawyer in colonial Massachusetts, Otis was a prominent pamphleteer who is credited with coining the phase "Taxation without representation is tyranny." 65 A lawyer and pamphleteer in colonial Massachusetts, John Adams would become the second president of the United States of America. 166 Turning to a career in law after failed attempts at farming and business, Henry practiced in Virginia and became a strong voice during the American War of Independence as a general and orator with the phrase "Give me liberty or give me death!" later attributed to him by William Wirt. 167 An author of the Declaration of Independence, Jefferson was the third president of the United States of America. 45
Wilson amongst the significant members of the nation's orators, new writers, and,
effectively thereby, its new leaders, it is not surprising that Ferguson notes: "[tjheir
writings were heavily scored with the citations and doctrines of legal study [,..]."169 It would be these individuals, amongst other literate lawyers, who would contribute to an
early American literature imbuing their work with a subject matter they were intimately
familiar with: the law. As discussed in Chapter 1, from these beginnings it is not difficult to draw a rather straight evolutionary line to Law and Literature's current practice. The initial cultural engagement with legal subject matter in American literature led to its eventual inclusion and study within legal academia promoted by individuals such as
Wigmore and Wambaugh. Later, Cardozo's interest in the structure of persuasion eventually led to the current theoretical approach to Law and Literature. Ultimately, its current manifestation in the American legal academy is a combination of both earlier approaches with the study of works containing overtly legal subject matter alongside others with superficially tenuous connections as well as a critical engagement with the law influenced by contemporary literary and cultural theory.
The genesis of a Canadian legal literature and the subsequent study of Law and
Literature in Canadian law schools do not run parallel with their American counterparts because both were premised on uniquely different cultural, pedagogical, and social
catalysts for growth that differed significantly between the two nations. Mindful of the
discussion that will follow surrounding the growth of Canadian legal education, a closer
A signatory of the American Declaration of Independence, Wilson's legal career was punctuated by his appointment as one of the original justices of the United States Supreme Court. As a lecturer in law at the College of Philadelphia, Wilson professed a legal education that eschewed practiced-based instruction but focused on the development of cultured men of letters. 169 Supra note 14 at 11. 46 examination of the developmental patterns within Canadian literature provides a partial explanation for its late development as well as insight on the influences that led to the eventual inclusion of legal subject matter in our larger national narrative.
It is something of an understatement to suggest that the growth of a Canadian literature was emblematic of the country which it attempted to chronicle. As stated by
Magdalene Redekop, "[connection between the story of a nation and the stories written by its citizens may be problematic but connection there undeniably is."171 It is in that problematization that one gains true insight, as an accurate understanding of the stories composed by a nation's writers also calls the reader to turn a critical eye to the narratives that failed to find a larger audience through choices editorial, economic, and otherwise.
As I will demonstrate, this is particularly the case in the context of a Canadian legal literature.
The significant absence of legal subject matter in early Canadian literature and the practice of Canadian literary nationalism are, in many respects, intertwined. As
McDougall notes, the call for a uniquely Canadian literature rang out even before the nation's constituting documents had been signed in 1867. This literature, wrote the editor of The Provincial in 1852, would chronicle the new experience of British North America by "exhibit[ing] the capacity, tendencies, and duties of native mind in this young and
For the purposes of this thesis, my analysis of Canadian literature focuses on published narratives beginning during the period slightly before Confederation. As noted by W.H. New, '"Canadian literature' is not bounded by citizenship (there were writers before there was a 'Canada'[...])." It should be noted with some emphasis that a significant tradition of Aboriginal narratives existed long before Confederation and constitute their own part of the Canadian literary tradition. Of significance to this thesis, many of these narratives chronicle events of significance to the treaty process and represent an early example of legal literature. The importance of Aboriginal oral narratives was confirmed by the Supreme Court of Canada in its decision Delgamuukh v. British Columbia, [1997] 3 S.C.R. 1010. For further discussion on aboriginal oral narratives in a literary sense see Thomas King, Supra note 100. 171 Magdalene Redekop, "Canadian literary criticism and the idea of a national literature" in Eva-Marie Kroller, The Cambridge Companion to Canadian Literature (Cambridge: Cambridge UP, 2004) at 263. 47 rising country."172 He went on to assert that a uniquely Canadian literature was a fundamental qualifying element of nationhood: "[a] home or native literature is a thing most earnestly to be desired by every country."173 By the time Canada had gained its status as a nation, the concurrent desire for its own literature had not waned as evidenced by the comments of Henry J. Morgan in his Bibliotheca Canadensis published in 1867.
In noting the recent political union of four provinces, Morgan asserted that the growth of a uniquely Canadian literature was itself a patriotic endeavour to be celebrated: "It becomes every patriotic subject who claims allegiance to this new northern nation to extend a fostering care to the native plant, to guard it tenderly, to support and assist it by the warmest countenance and encouragement."174 With its political dimension, what these new Canadianists called for was more than a simple definition of Canadian-ness but simultaneously a differentiation from their rebellious neighbours to the south while still professing ties to their larger imperial family. This "dilemma" of literary nationalism is set out by McDougall as follows:
... on the one hand the need to produce by some means difficult to define a native literature which would express the new society; on the other the need to place any literature produced in Canada in a context wider than the national, and notably in the context of the still dominant inheritances from literary culture of Great Britain.175
In the wake of a settlement literature that chronicled the challenges and travails of those new to British North America set against the imposing landscape of a new and uncultivated country, the dominant feature of post-Confederation Canada was, as W.H.
New asserts:
172 Supra note 14 at 57. 173 Supra note 14 at 57. 174 Supra note 14 at 58. 175 Supra note 14 at 58. 48
Neither subject nor tone, but the expectation (realized in the formal conclusions to literary works) that an orderly sequence would lead to a definite resolution. By extension, rebellious challenges to orderly sequence (or to what was conceived as orderly sequence) would lead, it was argued, to unnatural results.176
This was a clear response to the rebellious American political movement as well as the
Canadian prerogative to remain loyal, law-abiding subjects of the Empire during its path towards national identity. Moreover, as members of Canada's Establishment, most early writers were unwilling to challenge the status quo or the laws used to preserve it.
Accordingly, the literature that emerged chose to celebrate the new county instead of calling for radical changes to arrive at nationhood or a questioning of governance.177
With the further expansion of the country westward through Sir John A. MacDonald's
"national dream" of a transcontinental railroad, this new nation was defined by a concurrently innate desire towards progress amidst this new landscape. The role of nature and, in particular, landscape was of particular interest to early Canadian writers as noted by the literary scholar Northrup Frye. According to Frye, the Canadian landscape defined not only the nation's self-perception but how it related to other countries:
[Between Confederation and the First World War,] Canada was trying to think of itself as a single nation extending 'from sea to sea'. As there was so much empty space in between, the Canadian consciousness could hardly match the American sense of a vast society slowly pushing a frontier westward until it reached the Pacific. Canada had to think of itself rather as part of a world-circling empire, its railways filling the gap in communication between Europe and the East, its natural resources contributing to a global technology, its young men taking part in
176 W.H. New, A History of Canadian Literature, 2nd ed. (Montreal: McGill-Queen's UP, 2003). 177 New notes that "most Canadian writers belong to a single social group identifiable with a university- based Establishment." This establishment was "subtly but adamantly exclusive in terms of the training of their members, their ethnic origin, even the faith they profess." It is not unreasonable to suggest, therefore, that these same writers would be unlikely to attack this Establishment by questioning its laws to the same degree that American writers provoked reform through their early writing. See Robert L. McDougall, "The Dodo and the Cruising Auk: Class in Canadian Literature" in Robert L. McDougall, ed., Totems: Essays on the Cultural History of Canada (Ottawa: Tecumseh Press, 1990) 69 at 70. Not all literature, however, reflected a law-abiding citizenry. In the wake of Louis Riel's execution, many chronicles of the Red River Rebellion and Frog River Massacre came to print including texts by Theresa Gowanlock, William Bleadsell Cameron, and Elzear Paquin. See ibid, at 82. 49
the only social activity they were really wanted for outside Canada, imperial wars.17
In the wake of Confederation, Canadians began looking for their own literary voices while still maintaining ties to Britain and America. This desire was satisfied by a grouping of writers aptly named the "Confederation Poets" because they were all born during the 1860's.179 Writers such as Charles G.D. Roberts, Archibald Lampman, and
Bliss Carman wrote of the various challenges facing their new nation as it embarked on a new century. Quite often, their writing examined the tensions "between ideas of change and eternity" in their new country "in which the character of their closing century was out of kilter with the ideals that their culture had led them to perceive as the actuality of times past."180 Writers often dealt with this by referencing classical subjects but they also recognized the need to place their work within a Canadian context. As evidenced by
Roberts and Lampman, this involved references to the landscape and Canada's
Aboriginal peoples with Roberts "versifying Malecite tales of Gluskap, and Lampman invoking Manitou..."181 While the work of many Confederation Poets was often patriotic in its focus it was not exclusively so. As New notes, the work of Wilfred
Campbell "clearly reveals the tensions between imperial desire and colonial resentment."182 The focus on Canadian-ness extended to a loose grouping of writers named the Canada First movement. The group emerged in 1868 and included members such as the previously mentioned Morgan and Ontario poet Charles Mair.183 These writers celebrated their new country and its landscape by infusing their work with iconic
178 Northrup Fiye, Divisions on a Ground (Toronto: Anansi, 1982) at 43. 179 Supra note 176 at 114. . 180 Supra note 176 at 114, and 118. 181 Supra note 176 at 119. 182 Supra note 176 at 116. 183Swpranotel76at82. 50 imagery from nature and recent history. Indeed, Mair's work selectively edited classical imagery for that of "references to bison, Indian warriors and Laura Secord."184
The earliest images to arise from Canadian literature were quite often based in history or nature and generally positive. While some writers did turn their attention towards the inner workings of local society in the significant tradition of early Canadian satire there is very little that points to legal issues, the practicing bar, or the judiciary. All was not, however, well with the nation and the aftermath of the Great War had a significant impact on the country's writers and literature. While many looked to the battlefields of Europe as the locus for Canada's true emergence as a nation, it was on the home front where its writers took the early steps towards defining themselves socially and where the initial stages of a national legal literature emerged. The earlier voices of those "maple-leaf poets found a home in the newly formed Canadian Authors'
Association. This grouping, however, was not without its own critics and new voices began to challenge the Establishment's idea(l) of Canadian literature. One of the strongest indictments was that of author and McGill University constitutional scholar
F.R. Scott in his poem entitled "The Canadian Authors Meet":
O Canada, O Canada, O can A day go by without new authors springing To paint the native maple, and to plan More ways to set the selfsame welkin ringing?185
Indeed, what Scott was questioning was the relationship between the poet and the society on which they were called to reflect.186 Scott was clearly critical of disengaged creativity that sought to capture landscape through verse and text instead of turning their
184 Supra note 7 at 58. 185 F.R. Scott, "The Canadian Authors Meet" (1927) 1:2 McGill Fortnightly Rev. 9-10. 186 James Doyle, Progressive Heritage: The Evolution of a Politically Radical Literary Tradition in Canada (Waterloo: Wilfred Laurier UP, 2002) at 133. 51
artistic gaze to the stark social reality that surrounded them. This became particularly
important for those who shared Scott's viewpoint in the wake of the turbulence from the
Great Depression. Many writers objected to the idealized notions of alleged Canadian
social reality and idealism put forward by privileged members of the Establishment. This
led several to openly espouse more radical political movements and reflect their concerns
within their writing. The most notable of these writers included Dorothy Livesay with
her espousal of Communism, Scott and the CCF, and Earle Birney and his belief in
"Trotskyist ideas."187
The significant response of the political "left" during these turbulent times would
ground a cultural response to the accepted establishment and introduce the first
significant examples of an indigenous legal literature to Canadian readers. Professor
James Doyle argues that one of the most effective conduits for socialist realism during this period was found within the dramatic forum. Unencumbered by "the vagaries of book publication" and responding to a public appetite for cinema, playwrights during this tumultuous period recognized "a huge audience eager for inexpensive public
entertainment.. ."189 Certainly, Doyle speculates, "at least some of this audience could be
led by judicious playwrights and theatre companies towards an appreciation of serious political drama."190 The theatrical form that emerged, agitprop, had its roots firmly in the
Russian Revolution and would become "the dominant form of Communist-inspired
drama."191 Deriving its name from its own purpose of agitation and propaganda, the goal
m Ibid at 133,171 188 W.H. New notes that efforts at social criticism during this period were "broadly equated with dangerous radicalism." Supra note 176 at 133. 189 Supra note 186 at 125 190 Supra note 186 at 126. 191 Supra note 186 at 126. 52 of "breaking] down the barriers between art and life" was perfectly suited to the playwrights' aims of social criticism and chronicle.192
With their consciousness of how class affects social reality, proponents of agitprop theatre recognized that the impact of questions surrounding class would eventually run headlong into questions surrounding the law. This was evident as plays often looked at the interaction between the radical left and the police. Unfortunately, as
Doyle notes, "few of these works found their way into print, and most are presumably now lost."193 One of those that did survive is a piece entitled Eviction by the Montreal
Progressive Arts Club written by "two members of the club" about the murder of Nick
Zynchuk. Radical playwrights continued to concern themselves with how the underclasss were being, in their opinion, abused by the police and powers that be. In a one-act play entitled Deported (1932), written by the Workers' Experimental Theatre the audience is presented with "a realistic domestic vignette, in this case involving foreign-born workers threatened with deportation, but ending in accordance with the socialist realist formula on a note of hope."194 In another work entitled Eight Men Speak by Oscar Ryan and three others for the Theatre of Action, the socialist realist style was again adopted to critique the struggle between workers and capitalists surrounding the simultaneous arrest of eight communist leaders in Canada in 1931.195 Often provocative, agitprop playwrights did not only concern themselves with the law but were lightening rods for legal intervention themselves. Ironically, after one reading of Eight Men Speak, Communist Party of
Canada leader Tim Buck and seven associates were charged and eventually convicted
192 Supra note 186 at 126. 193 Supra note 186 at 128 194 Supra note 176 at 129. 195 Supra note 176 at 148. 53 under Section 98 of the Criminal Code that prohibited the association of individuals for the purpose of unlawful governmental, industrial, or economic change.196 Upon sentencing, Buck and his colleagues were sent to Kingston Penitentiary. Not without coincidence, during a prison riot later that year Doyle notes that a guard fired shots into the police critic's cell. Given that Buck was not involved with the riot, it was clear, suggests Doyle, that this was an assassination attempt.197 These events eventually inspired further dramatic output by the agitprop proponents that challenged the social direction of the time:
Around these events the playwrights constructed a series of brief scenes. The central episode—originally intended to be the entire scope of a much shorter play—is an imaginary trial of the prison guard. The guard is defended by "Capitalism", the stereotypical fat, formally attired caricature; the prosecutor is a personification of CLDL, the Canadian Labour Defence League.198
Throughout this period, law permeated a significant amount of literary discourse.
As with the events noted above, this is principally associated with the massive social change occurring at the time with such events as the introduction of minimum wage legislation and an old age pension.199 As mentioned, a central figure within this discourse was the lawyer and scholar F.R. Scott. As a professor and later dean of law at
McGill University in Montreal, Scott chose to place himself in direct opposition with many of the policies of the conservative Duplessis government (1936-1939 & 1944-
1959).200 With his involvement in cases such as Roncarelli v. Duplessis201 and a challenge against the prohibition of D.H. Lawrence's Lady Chatterly's Lover for
Criminal Code, R.S.C. 1927, c. C-36, s. 98. Supra note 186 at 130 Supra note 186 at 130-131 Supra note 176 at 143. Supra note 176 at 144. Roncarelli v. Duplessis, [1959] S.C.R. 121. 54 obscenity,202 Scott challenged the Establishment's capacity and ability to assert control through legal means. Scott took a more creative involvement with history and literature with such poems as "All the Spikes but the Last."203 Therein, Scott's social realism attacks the convention of Canadian historical writing by questioning why the role of
Chinese Canadians had not been portrayed in the significant portrait capturing the hammering of the last spike. Several years later, this reexamination of history would resurface as a theme within Canadian literature.
Amidst this period of significant social change, the setting chosen by many
(though not all) Canadian writers shifted from the more rural landscape of the frontier to that of the urban centre in order to reflect this new social realism.204 As W.H. New notes,
"[r]ealism was less a particular form than a way of restructuring social norms by challenging the accuracy of those in place. Images of the working farm and the failing farm became counters to habitant pastoralism; urban settings became counters to nature."205 One such work is Trente arpents (1938; translated as Thirty Acres, 1940) by
Philippe Panneton who wrote under the pseudonym Ringuet. The uncertainty facing many Canadians was personified in the main character, Euchariste Moisan, who, although "devoted to his land, finally must give it up when a lawsuit threatens to destroy him."206 Forced to live out his life separated from his land and language, Moisan's story represented the reality that, for many, "[c]hange and progress [did] not coincide, but the dream of agrarian self-sufficiency [was] no longer a viable alternative" within this new
202 R. v. Brodie, [1962] S.C.R. 681. 203 F.R. Scott "All the Spikes but the Last" in The Collected Poems ofF.R. Scott, 2nd ed. (Toronto: McClelland and Stewart) at 194. 204 Supra note 176 at 149. 205 Supra note 176 at 149. 206 %?ra note 176 at 151. 55 country. By moving away from the farm and towards a more urban setting, attention was necessarily directed towards correspondingly new themes of "factory workers, the plight of immigrants, [and] the violent life of the city street."208 Writers were not simply content in portraying these themes but they also saw the direct connection between the politics of the time and their artistic practice. This led to narratives that challenged the reader to not simply acknowledge but participate in the active debate surrounding their
(both author and audience) changing nation.
As evidenced by Dorothy Livesay, the Canadian debate surrounding law was not solely restricted to literary works as law permeated the larger social culture during the period before the Second World War. The Canadian Broadcasting Corporation began composing radio plays that drew on legal themes and often portrayed courtroom procedure, thus demystifying the law for many listeners.209 Canadians were also inundated with images of their most horrific crimes served up as popular entertainment.
One of the most significant areas of access for many Canadians during this period was the pulp novel. Due to the impact of the War Exchange Conservation Act (1940) which prohibited the sale of foreign pulps, the Canadian demand for such publications grew exponentially and a new market for Canadian stories flourished. Canada had not only become a consumer of these sensationalized narratives but was also a significant net producer.210 Given the challenges faced by many, pulp novels existed as a cheap form of
207 Supra note 176 at 151. 208 Supra note 176 at 149. 209 Carolyn Strange and Tina Loo, True Crime, True North The Golden Age of Canadian Pulp Magazines (Vancouver: Raincoast, 2004) at 1. New notes that, works such as Livesay's radio play Call My People Home embraced the new focus to challenge the treatment of Japanese-Canadians during their internment over the course of the Second World War. See supra note 186 at 154. 210 Ibid, at 3. 56 diversion from "troubles at home and abroad."211 As Carolyn Strange and Tina Loo note,
"[w]riters learned about cases the same way the public did, through the crime pages in their local newspapers."212 While writers were confined to the facts of a case and publishers solicited "[a]ny type of crime case that would make a thrilling story", writers who were actually successful in getting their material published tended to concern themselves with "those murder cases with dramatic angles that [they] could play to the hilt" with a fair amount of creative license employed to sensationalize their narrative.213
Maniacal villains, over-sexed women, stereotypical portrayals of Aboriginal and ethnic groups abounded. Indeed, as Strange and Loo note, this imagery became emblematic and indicative of plot turns:
Women were vixens or victims, the completely innocent female victim being a rarity. Ethnic and racial pigeon-holing and pidgin English provided shorthand, two-dimensional characterizations. If white trappers could fly off the handle in the north, Indians, French Canadians and blacks, as well as Southern and Eastern Europeans were congenitally prone to jealousy.214
When examining the stories themselves, Canadian pulp crime novels had a unique form. In several instances this meant that while the facts of each case were different the characters themselves often stayed the same. As noted above, ethnic and racial stereotypes prevailed but also through them the authors were able to drive the plot. A significant example of this comes from the portrayal of Aboriginal characters. In the vast majority of the cases, the "Indian" was more likely jealous than the stoic figure of a warrior. This inevitably confirmed an urban and southern racialized viewpoint.215
Stereotypes often functioned as an unspoken code from which the stories derived
211 Supra note 207 at 3. 212 Supra note 207 at 3. 213 %?ra note 207 at 3. 214 Supra note 207 at 50. 215 Supra note 207 at 50, 53. 57 meaning. For example, novels often associated the far north and west coast with a barely civilized existence and outlaw characters one might assume to find in the American
The Canadian pulps, like their American counterparts, took a very moralistic viewpoint on crime: "... the lawman's view of crime and criminals prevailed in the
Canadian pulps: there were no unsolved mysteries or bungled cases, and no instances where criminals failed to get their just desserts."217 Furthermore, the integrity and ingenuity of those on the "right" side of the law was valorized with R.C.M.P. officers portrayed as fine specimens of brawn, brilliance, and authority.218 Unlike the actual courtroom dramas they chronicled, the cases in pulps were clearly black and white with the outcomes almost preordained. A significant message was therefore communicated within the pulps. While crime was decried, the authors did not fail to comment on how their readers might conduct their lives. Strange and Loo note one particular example that centres around how Canadian pulps dealt with the crime of theft. Given the stress of the recent depression, the writers of pulp novels often moralized the crime of theft as verging on a charge of murder in severity. Such criminals were demeaned and often caricatured harshly:
In an era not far removed from the Depression, then beset by war sacrifices, pulp writers were drawn to cases involving criminals who had fancied hard cash could be had without hard work. This was not a peculiarly Canadian value, but few Canadians in this period questioned the connection between honest work and respectability. Indeed, during the 1930s thousands of men and women had marched and protested for the right to earn an honest day's wage. Perhaps this is
216 Supra note 207 at 8. 217 Supra note 207 at 4. 218 Supra note 207 at 30. For a discussion of the idealized imagery of the Canadian legal system personified in the character of the Royal Canadian Mounted Police see Robert L. McDougall, "Public Image Number One: The Legend of the Royal Canadian Mounted Police" in Totems: Essays on the Cultural History of Canada (Ottawa: Tecumseh Press, 1990) at 125. 58
why the true crime pulps published so many stories of humble folk who ought to have known the moral worth of a day's work but took what they figured was the easy road to fortune, albeit one that led to death.219
Throughout most pulp novels, an identifiable framework developed. By means of synopsis, the writer would first take their reader on an overview of the crime. This inevitably delivered the reader to a moment in the drama when they would be placed in the midst of the highly dramatized police chase. With the criminal caught, the next task would be to bring them to trial which was often quickly arrived at without much procedural discussion of bail or preliminary hearings (again, most criminals were considered guilty upon arrest). With their time in court, the crime itself is again reviewed and its gory details rehashed with significant moral overtones. Ultimately, in almost a preordained fashion, the inevitable outcome was arrived at with the criminal being sentenced to a substantial amount of time in jail or, for the most serious of cases, given the death penalty and a date with the country's most famous hangman, Arthur Ellis.
While the pulps dominated during the mid to late 1930's and throughout the
1940's, their favour ran out by the 1950's. At this point, readers had again shifted their attention from the pulps back to more conventional media access in newspapers, book collections, radio and the movies. Further, Canadian pulps were becoming overshadowed by the hard-boiled detective novels flooding in from the American market.221 Although the larger demise of the Canadian pulp may have occurred during the 1950's this is not to say that other forms of popular legal diversion did not thrive (and continue to do so) for a time in Canadian popular culture. Strange and Loo Strange suggest that "[t]he true crime
219 Supra note 63 at 62. 220 Arthur Ellis was the pseudonym of Canada's most prolific hangman, Arthur English, who practiced between 1912 and 1935. The Crime Writers of Canada have chosen to name their annual literary awards after the executioner. 221 Supra note 207 at 99. 59 industry continues to flourish today, albeit in different forms."222 They note that "famous
Canadian cases" continue to surface "but Canadians are more likely to consume their true crime in CBC-produced movies such as The Boys of St. Vincent, Butterbox Babies, The
Helen Betty Osborne Story, The David Milgaard Story, and Love and Hate [about
Saskatchewan politician and rancher Colin Thatcher's murder trial]."223 These new narratives, they suggest, choose to "confront issues that 1940's Canadian pulps steered clear of- state crime, racism, police incompetence and wrongful convictions."224
Two further examples suggest that the pulp model may still have some resonance within Canada. The first, although more American in its approach, is the Quebec police scandal sheet Alio Police.225 Often provocative with its stories of gangland style slayings and accompanying photos of bloodied, bullet-ridden corpses, the publication became linked to the late 1990's Quebec biker war because of its significant and explicit reportage of the battle between the Hell's Angels and their rival: the Rock Machine. Alio
Police has since fallen on hard times and was forced to close in the early 2000's leaving a massive archive of true crime for researchers and readers alike. A bellwether pulp that had marginal success in central Canada yet seemingly thrives in eastern Canada is the scandal sheet Frank Magazine. A magnet for controversy, Frank functioned as more of a provocative satirical tabloid in Ontario. Exposing the foibles of the rich and famous,
Frank was not immune from its own gaze as some of its editions brought the threat of legal action which were inevitably reported within the pages of the magazine and
Supra note 207 at 99. Supra note 207 at 99. Supra note 207 at 99. Supra note 144 at 67. 60 elsewhere.226 Frank's east coast cousin is a more sedate sheet that seemingly takes much of its material for its "Crime and Punishment" section from the publicly accessible records of the various provincial courts, both inferior and superior. Gossip and apparent reportage is presented however most of the stories appear truly "ripped from the headlines" and are more likely precis of the pleadings in legal actions.
Some of the most significant events that impacted both Canadian law and culture proved to be the result of simmering tension between the country's "two solitudes."227
Based on events that predated Confederation, events during this period focused the attention of many within Quebec on the concept of nationhood. As New notes, following the death of the conservative premier Maurice Duplessis, significant economic and educational reforms took place under the auspices of Jean Lesage's "Quiet
Revolution."228 These changes, however, were not enough for some who sought to achieve nationhood through more violent and immediate means. During the fall of 1970, the Front de Liberation du Quebec (FLQ) engaged a campaign of violence that included the kidnapping of the British Trade Commissioner James Cross as well as the murder of
Quebec cabinet minister Pierre Laporte. In response to these events, Prime Minister
Pierre Trudeau invoked the War Measures Act which suspended the civil rights of citizens by allowing for greater arrest, search and detention powers on the part of the police. Canadian writers expressed their concern for individual liberty to varying degrees with efforts such as Brian Moore's The Revolution Script (1971), Al Purdy's The
The Ontario edition of Frank Magazine was often the subject of threatened litigation with one of the notorious being a complaint settled out of court with then-journalist and now-senator Hon. Mike Duffy. 227 The term "two solitudes" refers to a novel of the same name written by High MacLennan in 1945. The novel chronicles the life of Paul Tallard and his experiences between the two extremes of Quebec culture: Qu^becois and Anglophone. 228 Supra note 176 at 205. 61
Peaceable Kingdom, and Yves Beauchemin's L'enfirouape. 2 The constitutional questions provoked by this event and later attempts at constitutional amendment or unilateral succession through referenda would prompt writers on both sides of the cultural divide to comment. One of the most effective mediums for this debate proved to be the essay which proved to be "the heart of intellectual dispute and cultural reform."230
New goes on to note that the significant and sudden social changes that confronted Canadian society caused several writers and critics to search "to find order at the heart of speech and social custom."231 For many, according to New, the answers to this search were found in the scholarship of the noted University of Toronto English scholar Northrup Frye. In Frye's opinion, "literature is not about life but about other literature: that is, it recodes the cultural heritage by re-enacting the patterns of previous writings."232 Based on this theory, writers and scholars looked to a repetition of literary patterns and forms within Canadian literature which, in turn, confirmed a belief in
"wholeness, harmony, balance (an ideal of perfectibility, an image of the mandala)."233
One such writer was James Reaney who examined a fatal family feud in his work The
Donnellys.234 Like other writers working with myth, Reaney was attempting to draw connections to the past and used this narrative to explore "the shapes of heroism in conventional times."235 By challenging his reader to contextualize the historical narrative within present events Reaney was, according to New, attempting "not to repeat history
229 Supra note 176 at 205. 230 While New notes that the essay form was particularly effective in "modern Quebec - more so than in English Canada", a notable exception during this period is that of Mordecai Richler. Supra note 176 at 206. 231 Supra note 176 at 217. 232 Supra note 176 at 217. 233 Supra note 176 at 217. 234 James Reaney, The Donnellys: a trilogy (Vancouver: Press Porcepic, 1983). 235 Supra note 176 at 221. 62 but reinterpret it." The role of history would continue to be explored later in Canadian writing.
As Canadian literature progressed through to the 1970's and 1980's the concern for history met more theoretical questions by authors as well as those within the academy. This resulted in works that often did not interest themselves in specifically
"historical" facts but rather chose to examine how such information was received and processed: "Such works thus do not interest themselves in what historians have received as 'fact' so much as they seek to reinterpret or reclaim the past from a particular interpretation of it."237 Often, this resulted in a reinterpretation of events and an alternative story being told. Indeed, this period of time was the emergence of what would become Delgado's "counternarrative" in a Canadian context. One of the most popular figures subjected to this reexamination was that of Louis Riel who appeared in works by
George Woodcock, Carol Bolt, Don Gutteridge, and Rudy Wiebe.238 Unlike prior events,
Wiebe's approach takes an alternative view and suggests how such events might be perceived from Riel's perspective.
As Canadian literature emerged from the 1980's and moved towards the last decade of the 1900's, theory, specifically post-modernism, significantly influenced the critical and creative output of the nation's writers. Where the early 1980's had seen an examination of the historical basis for many of the traditional narratives within the
Canadian canon, these decades utilized the critical tools to deconstruct and pull lynchpins
236 %?ra note 176 at 221. 237 Supra note 176 at 240. 238 Supra note 176 at 241-242. See George Woodcock, Gabriel Dumont: the Metis Chief and his Lost World (Peterborough: Broadview, 2003). See Carol Bolt, Gabe (Toronto: Playwright's Co-Op, 1973). See Don Gutteridge Riel: a poem for voices (Fredericton: Fiddlehead,1968). See Rudy Wiebe, The Scorched- wood People: A Novel (Toronto: McClelland and Stewart, 1977). 63 from the assumed certainty of narrative, and in several cases, the law. This writing and its critical attention was intended to examine the "subjectivity of judgment and the parameters of meaning."239 Accordingly, the place of the judge in the legal enterprise as well as the construction of meaning through the person of the lawyer was particularly important. Often this involved examinations of marginality and otherness through the lens of such social issues as class, race, ethnicity, gender, or sexual orientation.240 As
New notes, "[t]hese social issues were housed in the new form of historical fiction - or
'historiographic metafiction," as it came to be called - that is, historical narrative aware of its own constructedness but calling at the same time for social reformations."241
Probably one of the best examples of this approach to a reexamination of narrative is Margaret Atwood's Alias Grace. In this story, Atwood returns to one of her earliest influences in the person of Susanna Moodie. In one of Moodie's earliest journal entries she mentions attending a prison sanitarium in the county of York (now Toronto) where she observed the pitiful character of a woman convicted for murder. Atwood had initially been interested in this account but put it aside for some years. When she returned to the story and did some further research, a historical "murder mystery" emerged. Like many of her post-modern contemporaries, Atwood questions the certainty of the historical record. She does this by showing the indeterminancy of text through multiple accounts of the same facts in testimony, journalistic narrative, and the "actual" comments of the individuals in the text. Indeed, just like the emblematic patchwork quilts that Grace Marks stitches throughout her time in prison, so are the narratives of women (and men) composed from fragments to form a larger whole. Atwood also uses
239 Supra note 176 at 292. 240 Supra note 176 at 292. 241 Supra note 176 at 347. 64 the indeterminacy of text, to question the certainty of law surrounding domestic abuse and female reproductive rights. For example, contrasting the narrative found in the actual text of the novel with presumed truths from the witness stand, we are given strikingly different accounts of what brought about the murder of Grace Marks' employer and his sometime lover. Was this simply cold-blooded or were there alternate explanations?
Atwood's portrayal of Marks' mother's abortion also challenges the reader to examine issues of reproductive rights for women during this period as well as the present.
What becomes clear through these works is that authors continue to draw back voices onto the page from previously marginalized groups within Canadian society.
Indeed, Atwood's novel retells a story long discarded and generally only regarded as a footnote. In the case of George Elliott Clarke's George and Rue, the subject of the subsequent chapter, we see an absolute reclamation of the narrative. Clarke wrests the narrative power from the authoritative text of case reporters and rewrites his cousins' crime, trial, and execution. Not only does Clarke suggest this is entirely possible but he opens the door for others to follow his lead and that of Wiebe and Atwood to "excavate" narratives from the case reports and archives. As he suggests, "it is only in knowing their history that we may know our own."242
The role of Aboriginal writers increased with new importance not only due to the significant cases Aboriginal jurisprudence during the late 1990's and early 2000's but also due to the sheer number of Aboriginal writers who began telling their own stories.
With such rulings as Delgamuukw243 and Marshall (I and II),2AA the role of oral narratives and their presence in a larger legal framework gained attention. One
242 Supra note 144 at 83. 243 Supra note 26. 244 R. v. Marshall (No. 1) [1999] 3 S.C.R. 456, R. v. Marshall (No. 2) [1999] 3 S.C.R. 533. 65
Aboriginal storyteller who provided significant insight in this area is Harry Robinson whose narratives illustrated the adaption of oral storytelling methods to the written form.245 The question of narrative is explored by author and academic Thomas King in his Massey Lectures entitled The Truth About Stories?*6 Already a provocative
Aboriginal author, King challenges his generally white audience to acknowledge the power and certainty of Aboriginal narratives in contrast to their European counterparts.
He notes the fundamental differences between their importance and place within
Aboriginal culture and the concept of a "story" within a European context. Again, he challenges his reader to accept that there may be alternate retellings of conventional treaties that appeared to be watertight contracts, yet the traditions of contemporary accounts handed down over the centuries must be considered as evidence. How might these narratives be brought in for conventional literary narratives? How might they be considered further in legal narratives? King provides a balanced, nuanced, and theoretically insightful framework.
With that, we now arrive at the present. Contemporary narratives in Canadian legal literature and pop culture generally evidence a significant viewpoint on the law that is not always shared by our neighbours to the south.247 While Canadians may be
Supra note 176 at 309. See Harry Robinson "Coyote Tricks Owl", "Coyote Plays a Dirty Trick", and "The Flood". See also Wendy Wickwire, "Stories from the Margins: Toward a More Inclusive British Columbia Historiography" (2005) 118 J. Am. Folklore 453 at 455. 246 Supra note 100. 247 In an article published in the Nova Scotia Barristers' Society's "The Society Record", Chief Justice Joseph Kennedy (N.S.S.C.) expresses serious concern for the ignorance shown by some lawyers who appear before Canadian courts demonstrating a lack of awareness to the legal differences between Canada and the United States. In Chief Justice Kennedy's opinion, this is because of the significant cultural barrage emanating from the United States and the prominence of legal subject matter therein. As Chief Justice Kennedy states: "It's important that Canadian lawyers know and remember how different we are. Lawyers are as susceptible to the American cultural monster as any other citizens of this Country. We were raised on Perry Mason and L. A. Law. We became familiar with Roe v. Wade and Brown v. Board of Education before we ever read a Canadian citation. We knew of Clarence Darrow and Melvin Bell and 66 influenced to a degree they are not readily aware of, there is a growth of original works that include discussion of the law in a Canadian context. Beyond the examples previously mentioned, Canadian producers are engaging law in various media. One particular area where Canadians have had measured yet questionable success is in the area of television. With such notable examples stretching back to the 1960's, Canadian television drama has expressed a uniquely accurate portrayal of the legal system albeit limited in its continuity and presence on networks over the decades.248 In significant contrast to the mainstream American images that often colour viewers into thinking that there is little to no difference in the two countries' legal systems, Canadian television drama is an intelligent, well-executed portrayal that is usually quite accurate.
Canadian cultural output has not been limited solely to popular culture. Indeed, fine artists have opened themselves up to the theoretical challenges of intersecting law and their practice. In the work of Judy Radul and Geoffrey Farmer, we are drawn into an actual courtroom in the converted Art Gallery of Vancouver where a court stands in disarray.249 With a superimposed soundtrack of testimony read from the Air India trials with commentary interjected by the artist and collaborators, Radul and Farmer take the interaction between lawyer and witness and troubles it by layering voice and text upon each other such that it is almost incomprehensible. They suggests the indeterminacy of evidence and reveals that not only is the information received by the court conflicting but
Johnnie Cochran before we ever heard of J J. Robinette, J.P. McKeen, or Eddie Greenspan." The Society Record, 23:1 (Halifax: NSBS, 2005). 248 Canadian television dramas have included, inter alia, the following legally-themed offerings: Wild Roses [2008-2009], Intelligence [2006-2007], DaVinci 's Inquest/DaVinci 's City Hall [1998-2005], The Associates [2001-2002], Due South [1994-1999], North of 60 [1992-1998], Street Legal [1987-1994], Night tfectf [1985-1991], Wojek [1966-1968], andR.C.M.P. [1959-1960]. 249 Judy Radul & Geoffrey Farmer, Room 302 (Vancouver, 2005). See Jennifer Van Evra, "Where the truth really lies" The Globe and Mail (28 October 2005) R8. See Richard Fowler, "A lawyer steps into Room 302" Postscript 16 (Vancouver: Artspeak, 2005). See Clint Burnham, "A body of work that somehow makes us forget it's art at all" The Vancouver Sun (5 November 2005) F3. 67 the actual outcome is confused. Furthermore, like Clarke's courtroom, the disorder of
Farmer's courtroom suggests more institutional failings. A second Canadian fine artist who has chosen to explore legal themes within their work is the multidisciplinary sculptor and illustrator Shary Boyle. In a series of illustrations that eventually became a book commemorating the 10th anniversary of Jane Doe v. Metropolitan Toronto
(Municipality) Commissioners of Police, 50 Boyle imagines an alternate, feminist retelling of Jane Doe's rape and subsequent mistreatment by the police. In one illustration, Jane Doe is reversing the roles and handcuffing a male police officer on the back of his police cruiser; indicating not only a sanction for the violation of Jane Doe's
Charter rights but also referencing her eleven-year legal battle to hold the Toronto police accountable. In another illustration, Jane Doe is depicted looking out her window at the scene where she was being transported to the hospital following her rape. Surrounded by male police officers, Jane Doe appears trapped inside her home while her body on the gurney outside is covered with a sheet; her identity and reality hidden as would be the case in her lengthy legal battle.251
A final example is viewed in one of the more improbable of media: opera. John
Estacio and John Murrell approached the prior conviction of a noted prohibition era bootlegger for murder and transformed it into one of the few dramatic operas ever produced in the Canadian history in their work entitled Filumena. Like Atwood's Alias
Grace and Clarke's Execution Poems, Murrell mines the case files for his subject matter
2501998 CanLii 14826 (Ont. S.C.). See Shary Boyle, The Story of Jane Doe (Toronto: 2008). 251 Shary Boyle, online: Shary Boyle at blogspot < http://sharvbovle.blogspot.com/>. See also Jane Doe 2009 Conference, online:
To conclude, what these examples evidence is that there has been an identifiable and dramatic increase in the interest of Canadians and their artists in the portrayal and attempted understanding of how the law functions as an institution and the discovery of our place therein. If, as Clarke suggests, we are ever to understand our own narrative we must first excavate the past. This, I suggest, is precisely why such stories need to find a greater representation in Canadian classrooms.
3. Literature, Law and Learning252
With the publication of lists of legal novels and other related literature in 1898 and 1901 respectively, Eugene Wambaugh and John Wigmore ushered in what would eventually become the study of Law and Literature. As mentioned, although their early efforts were briefly set back by the pressures of legal formalism, this area of study resurfaced and grew over the subsequent decades into what is now a significant area of study in a large portion of American law schools. In Canada, however, there are few parallels to the growth of American Law and Literature as widespread study of Law and
Literature across this country has only been a relatively recent occurrence over the last decade with the handful of earlier efforts existing on the fringes of the Canadian legal academy; their instructors placed in a very restricted and, some might argue, restricting niche. On the surface, one might question why such a significant area of academic
252 This title references the Consultative Group on Research and Education in Law's report Law and Learning. Not only does an understanding of this report and the general trends in law school education help explain why a Canadian Law and Literature scholarship was slow to arrive but, I strongly suggest, Law and Literature may contribute towards one of the Consultative Group's suggestions that Canadian legal research become more interdisciplinary and diversified. See supra note 4 at 157. 69 enquiry took so long to enter the academic mainstream in Canada given the sheer proximity of Canadian law professors to their American counterparts who researched, wrote, and taught in the area as well as the fact that Canadian law school libraries carried the same law journals wherein examples of this scholarship could readily be found. The answer, however, is not so simplistic and requires that one step back and examine some of the larger trends in Canadian legal education that led to this point. Indeed, the presence or absence of a Canadian Law and Literature scholarship represents an excellent case study in the growth patterns within, and influences upon, Canadian legal pedagogy and research. Furthermore, such trends may even suggest whether continued growth in this area of study is plausible amongst the majority of Canadian law schools that have not yet chosen to offer a course in this area.253
At the time of Wigmore and Wambaugh's publication of their lists of legal novels, it is highly unlikely that anyone responsible for the instruction of young lawyers within Canada would have been aware of their efforts. Even if they had, however, it is almost a certainty that it would not have had any impact on the instruction of their students: nor would it for a further seven decades. The reason for my assuredness stems from the fact that the manner by which law students were taught differed on a fundamental basis between both countries and would not begin to change significantly until the mid-1970's and early 1980's. In a very McLuhanesque manner, the absence of an early Canadian Law and Literature scholarship is directly tied not simply to how law students were taught but, more specifically, where they were taught.254 In short, Law and
253 A majority of Canadian common law faculties offer a course in this area while no civil law faculty provides a Law and Literature, Law and Pop Culture, or other similar course to its students. 54 University of Toronto English professor and communications theorist Marshall McLuhan asserted that "the medium is the message." In this specific case, the media of legal instruction are those of a university 70
Literature scholarship would not begin in Canada to any significant degree until Canadian law schools evidenced a sufficient capacity to work interdisciplinarily within the larger liberal arts university of which they are a part. Within law schools devoted to a doctrinal approach to the law it would be virtually impossible for such courses to gain any interest amongst either the faculty or the students.
At virtually the same time as Wigmore and Wambaugh's efforts, Canada was undergoing a shift in the way legal education was being offered. Prior to the last quarter of the nineteenth century in Canada, legal education was principally offered under the tutelage of a more senior member of the bar within their office where the student gained their knowledge through an experiential model of day-to-day legal work. Under this model, legal education was available to those "who could pay a fee, pass a perfunctory examination, and present evidence of matriculation from a secondary school. For those with more impressive academic credentials, the period of apprenticeship was shortened."255 As Harry Arthurs notes, "university teaching in both common and civil law [before this period] was sporadic at best, in contrast with the American experience."256 Under the American model, academic legal instruction emerged "around
1800" and evolved into a group of "elite, national faculties" of which the most notable example is that of Harvard Law School and for which there was no Canadian counterpart.257 In Canada, however, law societies were (and are) unwilling to release total control over a future lawyer's education. In the case of Ontario, as William D.
Moull notes, "the Law Society of Upper Canada held absolute sway over the education of based law school or a practice based apprenticeship. Each results in a significantly different message being communicated to their respective student. 255 %?ra note 4 at 13. 256 Supra note 4 at 12. 257 Supra note 4 at 12. 71 prospective Ontario lawyers from its inception in 1797 until it was forced to relinquish some control in 1949."258
As Moull goes on to note, the development of legal education within Canada can generally be viewed as one of divergent interests and efforts on the part of the university- based law schools and the professional-based law societies:
The history of legal education in Canada can be seen as a struggle to move away from training for professional purposes only, largely by apprenticeship, and toward full-time academic education within a university law faculties, with the prescription of curriculum and related matters gradually being taken out of the hands of provincial Law Societies [...]. While the exact dates of each step in this process may differ from one province to another, the general thrust and progression of the struggle were essentially the same across Canada.259
The first steps in this process can be observed with the foundation of university law faculties in Quebec and Nova Scotia. Soon thereafter, law faculties arose within
Saskatchewan and Alberta however, in contrast with the larger professional based training opportunities, they were generally small in size. While the stated purpose of the university based faculties was to offer a more academic curriculum, Arthurs states that
"in practice no such clear-cut opposition of styles seems to have developed.. ."260 This is evidenced, Arthurs suggests, with the results of consultation between the Canadian Bar
Association and the faculty at Dalhousie Law School during the 1920's which eventually led to a model curriculum that possessed "a clearly 'professional' orientation and presented no threat to a professional school."261
The real shift within Canadian legal education began in 1948-1949 with a rift at
Osgoode Hall "over the extent to which academic views and values would be
William D. Moull, "Law and the Social Sciences in Canadian Legal Education: Some Perspectives on the Arthurs Report" (1984) 34 J. Legal Educ. at 519. 259 Ibid at 519. 260 Supra note 4 at 13. 261S«pranote4atl3. 72 accommodated within a professional context."262 This resulted in a fracturing of faculty and the later establishment of a university-based law faculty at the University of Toronto.
Over the course of the next 2-3 decades, significant growth within these new academic training programs for future lawyers placed significant strain on the relationship between academia and the law societies. This is illustrated by the agreement forged between the various common law professional bodies and Canadian universities on a model curriculum composed of 23 core subjects.263 The calm between factions lasted for a brief period as the pressures of expanding faculties and increased student bodies with a more diverse educational basis brought about an expansion of legal curricula beyond the prescribed 23 courses. Further discussions occurred and some understanding of the respective roles of law schools and law societies was reached. These were based on an understanding that: "(a) the basic skills of legal reasoning, thought essential for practice, could be taught in any course and (b) that a greater flexibility in course selection would better permit students to explore the different areas of professional specialization that increasingly characterized legal practice in Canada."264 Eventually, a significant reduction of the "core" courses within law schools occurred in 1969 allowing for a greater degree of choice by law students and curricula offerings by law schools. These courses, however, generally continued to fall within a doctrinal, professionally-focussed framework. As such, during the initial period of growth within Law and Literature studies south of the border, this doctrinal focus prevented early courses within the area from developing within Canada
Supra note 4 at 13-14. Supra note 4 at 15. Supra note 4 at 16. 73
Over the course of the 1960's and 1970's significant changes were occurring within the practice of legal pedagogy.265 New course methods and areas of scholarship were developing quickly. Demands on law professors grew further with an understanding that the act of teaching demanded more than a basic understanding of the law but also an understanding of how to effectively instruct their students. These concerns amongst other efforts eventually led to the organization of a general study on the efforts in legal education and research within Canada sponsored by the Social
Sciences and Humanities Research Council (SSHRC). The report, under the direction of
Osgoode Hall law professor Harry Arthurs, was released in 1983 and caused a significant response within the Canadian legal community with strong views on both sides of the debate.
As legal historian Constance Backhouse recalls, the response to the efforts of
Harry Arthurs and the other members of the Consultative Group within her then-faculty at the University of Western Ontario was chilly at best.266 The report itself had been precipitated by the "shock" at the discovery that only two research grants had been awarded for legal research by the SSHRC. Arthurs' findings, however, were far more wide-reaching than just providing some explanation for this rather discouraging statistic.
Indeed, the Arthurs Report saw that statistic as symptomatic of larger problems within
Canadian legal research and education. In its conclusions, the Arthurs Report (as it has come to be known) expressed concern that the practice of legal education in Canada was somewhat uncertain of its place within the academy and the profession and, as a result,
265 Supra note 4 at 17. 266 Constance Backhouse, "Revisiting the Arthurs Report Twenty Years Later" (2003) 18:1 Can. J.L.S. at 33. 74 produced both deficient scholarship and educational opportunities for its students.267
Indeed, Canadian law faculties were trying to be everything to everyone and were succeeding at very little. In Arthurs' opinion, although situated within a liberal arts institution, the faculties did not evidence any impact of a liberal arts education on its curriculum or its student body. As a result, law faculties were, in the report's opinion, failing students by not being sufficiently broad nor providing them with the tools required for a contextual understanding of the law and its larger impact. In the context of legal research, the Arthurs Report concluded, amongst other things, that law professors were not conducting enough fundamental research: that being research "into the values, operation, and effects of law". Amongst many of its recommendations, the Arthurs
Report concluded that law schools should be more conscious of their educational goals and responsibilities to students, researchers, the profession, and the wider general public.
As a result, the report concluded, law schools should, among several other things, endeavour to offer both an academic and professional stream for students as well as promoting opportunities for greater research particularly in the areas of "theoretical and fundamental questions."269
What, exactly, has been the impact of the Arthurs Report within the context of
Canadian legal education and research? Can it be said to have had an impact on the development of Law and Literature? With respect to the first question, many legal academics have had mixed reviews of the report's impact on legal research and education. As both Roderick MacDonald and Constance Backhouse note, there has been
Supra note 4 at 153. Supra note 4 at 154. Supra note 4 at 154. 75 a positive rise in the scholarly activity and output of Canadian legal academics.
Additionally, MacDonald notes something of a change in systems values with the development of the Canadian Journal of Law and Society, its governing organization the
Canadian Law and Society Association, and the positive development of a separate vetting board for legal research grants under the SSHRC.271 With respect to the interdisciplinary study and instruction of law, MacDonald and Backhouse offer somewhat differing assessments. According to MacDonald, the efforts at interdisciplinarity have fallen short and little has changed within what he still considers to be professionally focused faculties:272 MacDonald is rather pessimistic about the impact that legal education and research have had on the larger university and vice versa. In his opinion, what little interaction there is takes place in interprofessional courses generally taught by practitioners wherein legal doctrine is passed out with little reflection and even less research. In those departments within Arts faculties where "law" subjects have had some significant growth, MacDonald states further that they are "habitually statist and non-empirical" offering little beyond doctrinal rehashing of "black-letter law".273
Backhouse tends to be more positive in her assessment noting significant scholarship produced by academics in areas such as Critical Race Theory and Feminist
Scholarship. Moreover, she notes the development of new approaches and areas of legal research in human rights, aboriginal, and business law.274 Backhouse, however, is not universally positive of the movement since the Arthurs Report was published and
270 See Roderick A. MacDonald, "Still 'Law ' and Still 'Learning*" (2003) 18:1 Can. J.L.S. at 5. See supra note 266 at 35. 271 MacDonald, ibid, at 5. 272 MacDonald, supra note 270 at 7. 273 MacDonald, supra note 270 at 9. 274 Supra note 266 at 35-36. 76
addresses a few areas of concern. This first of which surrounds a promising group of
graduate students. Just as Arthurs expressed significant disappointment that top
Canadian law students were being directed towards graduate studies opportunities
abroad, Backhouse notes that those law students interested in pursuing graduate research
opportunities that may involve interdisciplinary aspects are often forced to leave legal
studies.275 Secondly, she notes that, although there is evidence that the practice of interdisciplinarity has grown, professors are still quite limited in their approach to scholarship. Upon review, she discovers that law professors generally viewed their principal responsibility to be that of instructing their undergraduate students and, to a lesser degree, conducting research that would complement their teaching. Inevitably, this research tended to be almost exclusively doctrinal in orientation with little evidence of the sophisticated qualitative and quantitative research found in the social sciences or the application of legal theory.276
The question of interdisciplinarity has an obvious impact on the study of Law and
Literature and also received mixed progress reports in the literature following the Arthurs
Report. In MacDonald's assessment, the cause of interdisciplinarity has not flourished.
Using the example of the Law and Society Programme at the Canadian Institute for
Advanced Research, MacDonald noted that, after almost a decade of consultation between scholars from a wide range of disciplines, little real progress on such basic questions as research methodologies and objectives.277 This example, symptomatic of what MacDonald viewed as a general failure of interdisciplinarity, was because interdisciplinarity simply could not be forced or simply desired:
275 Supra note 266 at 36. 276 Supra note 266 at 35. 277 %?ra note 270 at 13. 77
...coerced multi, inter-, or transdisciplinarity cannot work: it is typically met by a refusal of collaborators to budge off their own projects and their own perspectives; each discipline wants to colonize the other with its own methodological and conceptual devices. Second, where interdisciplinarity is itself the object rather than an intellectual orientation for the research it will fail. Transdisciplinary scholarship requires scholars who are transdisciplinary and so interested in a range of perspectives on the law - sociological, literary, cultural, epidemiological - and not a collection of disciplinarians locked in a room without toilet breaks. Interdisciplinarity is not just a theoretic exercise: scholars must be able themselves to "walk the walk" as well as "talk the talk".278
How has interdisciplinarity impacted Canadian Law and Literature scholarship.
In many respects both MacDonald and Backhouse are correct in their viewpoints. I would agree with MacDonald that forcing interdisciplinarity on a scholar will not produce sufficiently interdisciplinary results. Canadian legal scholars were, quite simply not ready for Law and Literature until their focus shifted from a purely doctrinal one to the current environment that is more welcoming to interdisciplinary scholarship and courses within the law schools. I also agree with Backhouse that there has been positive growth in interdisciplinarity amongst law professors and students however there is still room for growth. Ultimately, the question of whether future growth in Canadian Law and Literature scholarship is possible depends on the acceptance of interdisciplinary scholarship in those schools that currently do not offer the course.
4. Is There a Case for These Texts in a (Canadian) Class?279
My first encounter with Law and Literature scholarship came in the fall of 2000 as a first year law student at Dalhousie Law School. Following a reading of the then-
278 Supra note 270 at 13-14. 279 The title of this section references one of the seminal pieces of contemporary critical theory by Stanley Fish entitled Is there a Text in this Class?: The Authority of Interpretive Communities (Cambridge: Harvard UP, 1980). Fish's work has been widely used within Law and Literature scholarship and instruction. 78 recently published collection of poems entitled "Execution Poems" by author and academic George Elliott Clarke, I rushed back to the law school to do some research on what I thought might be an excellent topic for a paper in my second or third year of studies. A quick search of journal articles failed to generate any items on Canadian Law and Literature scholarship and so I left the library that evening confident that I had stumbled on a rather new and innovative approach to the law. Slightly more than one year later I submitted a paper proposal for an upper year course in jurisprudence wherein
I put forth my "innovative" ideas on the relationship between law and literature.
Fortunately, I received some kind correction by my professor at the time and was directed to the rather expansive amount of scholarship emerging primarily from the United States as well as notable examples also coming from Great Britain and Australia. 80 Although I eventually submitted a paper that contained some of the elements that are explored to a greater degree within this thesis a question still lingered: why had Canadian academics not contributed a uniquely Canadian voice to what appeared to be a rather significant area of legal scholarship?
As demonstrated earlier in this chapter, the role of Canadian literature as well as
Canadian law school curricula in the relatively late emergence of Canadian Law and
Literature scholarship is significant. If so, what might be said about the increase in instruction of Law and Literature courses within Canadian law schools over the last ten years? Is this the beginning of an identifiably Canadian contribution to Law and
Literature scholarship? Are these courses merely manifesting the personal literary interests of their instructors with little relevance to some larger trend? What place do
Professor Richard Devlin was my instructor at the time and has since been an invaluable source of information as I continued my studies in Law and Literature at Dalhousie Law School. 79
they serve in a Canadian law school? An interesting point of departure for this discussion
is found in the work of Elizabeth Villiers Gemmette.281 In her two surveys of Law and
Literature education, Gemmette provides point-in-time snapshots of how Law and
Literature has been taught through varying curricular approaches and demonstrates its
significant growth over a span of just six years.282 In her first survey, Gemmette chose to
concentrate on American law schools. However her second survey was broadened to include all Canadian law departments. Since her 1995 survey, there has been no further canvassing of Law and Literature curricula in either the United States or Canada to the same degree.
Given the number of law schools in Canada as compared with the United States, my survey was thankfully far more approachable than Gemmette's copious efforts yet still generated statistically significant results. In order to gauge which Canadian law schools taught Law and Literature I examined the academic calendars for the 2007-2008 academic years of the twenty-one law schools and one law department identified by the
Council of Canadian Law Deans. Of those schools, ten indicated that a course on Law and Literature, Law and Popular Culture, or some other variant was taught by a member of their faculty.283 With that information, I then attempted to obtain a copy of the syllabus for each course taught through the respective law school's web site or by a
Gemmette, supra note 150. 282 Gemmette notes that the number of law schools that taught Law and Literature grew from thirty-eight as reflected in her 1987 survey to eighty-four in her 1993 survey. Gemmette acknowledges the potential for some criticism of her figures due to the greater number of surveys sent out but asserts that the growth trend in Law and Literature instruction can be clearly observed in comparing "the percentage of those schools reported to be offering the course with the number of schools responding to each survey. Using this analysis the percentage for the first survey would be twenty-eight percent and the percentage for the second survey would be forty-three percent." "Class Action", supra note 150 at 666. 283 These law schools included: McGill University, University of Ottawa, University of Toronto, Osgoode Hall Law School, Western Ontario, University of Saskatchewan, University of Manitoba, University of Alberta, and University of Victoria. It is worth noting that there are no law schools within the civil law system in Quebec that offer a course on Law and Literature. 80 request to the course instructor. This resulted in twelve syllabi from seven of the ten law schools which have been compiled in Appendix A to this thesis and set out the instruction of Law and Literature within Canadian law schools.
If one uses Gemmette's 1995 survey as a baseline for analysis, there is a clear trend that emerges in the growth of Canadian Law and Literature instruction, however, it is also one that is not without its caveats. Firstly, while Gemmette's 1987 survey did not canvass Canadian law schools this should not be taken as an indication that there were neither courses being taught in Canada nor research being pursued by tenured faculty. As noted previously, Professor C.R.B. Dunlop had first offered a course in Law and
Literature at the University of Alberta in the mid-1970's and Professor Dennis Klinck followed thereafter with his initial offering at McGill University in 1985. Both professors have also contributed significantly to the limited amount of Canadian Law and
Literature scholarship.284 Secondly, while the rate of inclusion of courses in Law and
Literature and its various permutations in Canadian law school curricula has been significant since Gemmette's last survey (150%), this statistic gains further significance when it is revealed that four of the six recently added courses were created in the last four academic years. As discussed in the previous section, while the precursors for such
Professor Dunlop has published several articles on Law and Literature in leading American law journals including the Cardozo Journal of Law and Literature. Professor Klinck's The Word of the Law represents one of the most significant pieces of Law and Literature scholarship published by a Canadian academic thus far. Whereas Prof. Dunlop tended toward a more "law in" literate approach, Prof. Klinck, a former professor of English literature, has tended toward a more theoretical approach in his scholarship. See supra note 1. See C.R.B. Dunlop, "Debtors and Creditors in Dickens' Fiction" (1990) 19 Dickens Stud. 25. See C.R.B. Dunlop, "Law in Literature: Legal Themes in Short Stories" (1996) 8:2 Cardozo St. in L. & Lit. 363. See Dennis Klinck, The Word of the Law (Ottawa: Carleton University Press, 1992). See Dennis Klinck, '"This other Eden': Lord Denning's pastoral vision" (1994) 14 Ox. J. L. St. 25. See Dennis Klinck, "Evidence as rhetoric: a semiotic perspective" (1994) 26 Ottawa L. Rev. 125. See Dennis Klinck, "The language of codification" (1989) 14 Queen's L.J. 33. See Dennis Klinck, "Style, meaning and knowing: Megarry J. and Denning MR. vain Re Vandervell's Trusts (No. 2)" (1987) 37 Univ. Toronto L.J. 358. See Dennis Klinck, "Embedded assertions: linguistic considerations in the rule in St. Lawrence (R. v. St. Lawrence, 1949 Ont. 215) (1998) 12 Queen's L.J. 21. 81 courses have been around for some time in an American form, uniquely Canadian pedagogical and cultural influences make the broader interest in Law and Literature a much more recent trend. Ultimately, with ten of twenty-two law programs offering courses in Law and Literature, Canada currently has a similar level of participation amongst schools (45.45%) to that expressed in America during Gemmette's 1995 survey
(45.19%). This statistic further suggests that there is also potential for additional growth in Canada; again, subject to the demands and challenges noted in the previous section..
With regards to the courses themselves, Gemmette noted that the courses taught at the time of her first survey tended to fall into three sub-categories of Law and Literature:
Law in Literature,285 Literature in Law,286 and The Legal Imagination.287 Furthermore, these courses were often neatly identified by their title and corresponding curricula. By the time of her second survey, Gemmette recognized that professors were less likely to rigidly compartmentalize their course offerings to fit such categories and were choosing rather to "introduc[e] students to varying levels of hermeneutics, often utilizing the tools of literary criticism for that purpose."288
An examination of the courses taught in Canada presents a broad and varying approach to the subject area by its Canadian practitioners. Of the twelve syllabi surveyed, all attempt to facilitate a critical engagement between the student and the source material supplied. Given the limited number of academics teaching in this area as
285 Gemmette notes, "Law in Literature courses utilize fiction and are usually organized thematically to show the lawyer or the legal system as they are reflected through the eyes of the novelist, short story writer, dramatist of poet. See "Suspect Class", supra note 150 at footnote 1. 286 Literature in Law (or Law as Literature) courses "emphasize the literary characteristics of statutes, constitutions and judicial opinions." See Gemmette, "Suspect Class", supra note 150 at footnote 2. 287 Courses in The Legal Imagination stem from a text written by James Boyd White of the same title. Originally intended by White to be used by law students as a text, the work and the corresponding courses in this area deal with "literary and legal language and style." See Gemmette, "Suspect Class", supra note 150 at footnote 3. 288 Gemmette, "Class Action", supra note 150 at 670. 82
well as the other demands on their teaching time, it is somewhat predictable that half of
the syllabi can by characterized as survey courses in Law and Literature.289 Of the
remainder, the approach adopted by the respective faculty members is diverse. Courses
range from an integrated co-professional approach to Law and Literature/Medical
Humanities290 and a course based on The Legal Imagination™ to rather innovative
offerings including courses on legal mystery writing,292 science fiction,293 Law and
Culture,294 and even an interdisciplinary mooting class on the works of Shakespeare.295
Ten of the courses combine critical works with source documents that are primarily
literature-based while one is based exclusively upon James Boyd White's The Legal
Imagination and the other chooses instead to "read" issues surrounding law and gender through the medium of film. Given the late arrival of such courses as well as the
relatively limited (yet growing) number of Canadian sources on which to draw, it is particularly significant to note that all of the Canadian legal academics teaching in this
area have chosen to incorporate examples of Canadian literature, pop culture, legislation,
or case law into the courses as a means for discussion and analysis. I will touch on the
importance of this shortly. Lastly, it would appear that Canadian academics teaching in this area are echoing the trend first noticed by Gemmette in offering their students a more nuanced and critical experience with Law and Literature by varying the subject matter
289 Professor Desmond Manderson is the only academic teaching in Canada who has been able to devote his entire academic practice to the study and instruction of law and discourse. This is due in large part due to the support of a Canada Research Chair in Law and Discourse. All other professors teaching Law and Literature in Canada maintain an active teaching and research practice in other areas of the law or academia. 290 Professor Weisberg offers a course to both medical and law students surrounding the images of doctors and lawyers in Literature. See Appendix A - Queen's University. 291 See Appendix A - Queen's University. 292 See Appendix A - University of Toronto. 293 See Appendix A - University of Manitoba. 294 See Appendix A - University of Saskatchewan. 295 See Appendix A - McGill University. 296 See Appendix A - University of Victoria. 83 presented in survey courses as well as encouraging their students to approach the subject in innovative ways grounded by critical discourse.
Given the relatively recent rise of interest in Law and Literature courses, it is particularly instructive to examine the course objectives set out by each professor. Not only do these objectives give some sense of what each professor wishes their students to gain by taking the course, but, by extension, they provide some insight into the personal impetus for designing the course and how it might contribute to filling in gaps within
Canadian legal education. In her first survey, Gemmette noted that four common objectives seemed to emerge from the syllabi: "(1) to expose students to grand literary style; (2) to become better critical readers; (3) to prepare students for the contemplation of the human condition; and (4) to strengthen the Humanities in the law school curriculum." By the time of her second survey, the objectives identified had become manifold.298
Similar trends also emerge when one examines the syllabi of Canadian Law and
Literature courses. Like their American counterparts, most, if not all, Canadian academics teaching in this area have taken a more diverse approach towards the subject matter as reflected in their objectives and, ultimately, courses. Only one course appears to follow the earlier four-part categorization noted by Gemmette, Prof. Mark Weisberg's course on White's The Legal Imagination, however it should be noted that Weisberg's other course offering reflects a broad reading of the academic literature in the area while simultaneously expressing a clear desire to work interdisciplinarily by cross-teaching the course with the Faculty of Medicine. Indeed, this is not the only co-taught course as
297 Gemmette, "Class Action", supra note 150 at 671. 298 Gemmette identified fourteen groupings of objectives in her second survey. Gemmette, "Class Action", supra note 150 at 675. 84
Professors Desmond Manderson and Paul Yachnin of McGill have brought English and
Law students together for a course on Shakespeare culminating in a moot court. While most professors endeavour to bring unique critical perspectives and subject matter to their courses, upon closer examination it is clear that several common elements exist amidst their superficially specific focus. These common objectives expressed in both survey and focused offerings are as follows: (1) to challenge students to see literature as a response to law;299 (2) to make law students aware of the image of lawyers in literature; (3) to expose law students to the study of the Humanities in their legal studies; (4) to explore the role that interpretation plays in both literature and law on both a theoretical and practical level; (5) to develop law students' writing and research skills; and (6) to challenge the conventional notion of the canon through an examination of text and narrative in both legal and literary authorship.
These objectives suggest that Canadian academics have developed their scholarship and resultant instruction to reflect many of the current trends expressed by their American counterparts. Are Canadian professors, however, simply jumping on the academic bandwagon when it comes to their instruction? A closer examination of the recent courses offered would strongly suggest otherwise and points to an awareness of benefit of CanCon in Canadian Law and Literature courses as well as the relevance of these narratives to their students.300
University of Toronto, University of Saskatchewan, University of Victoria, and McGill University. 300 CanCon ("Canadian Content") is a requirement within the Canadian music and television industries whereby works designated as "Canadian" would receive a specified percentage of airplay. In the context the music industry, works were so designated based upon a four-part criteria using a rather Canadian acronym, MAPL (Music, Artist, Producer, and Label). While CanCon infused commercial radio with Canadian voices after its inception, it has been the subject of criticism amidst a more global marketplace for music. 85
5. (Deconstructing the Canadian Legal Canon
In the final section of her survey on American Law and Literature scholarship,
Gemmette explores the debate surrounding canon formation and how the study of Law and Literature challenges or conforms thereto. I will conclude this chapter by examining how uniquely Canadian legal literature and subject matter are reflected in the instruction of Canadian Law and Literature academics.
The significant debate surrounding what should constitute the body of a Law and
Literature course in not completely removed from the larger debate on canon formation/expansion carried out in English faculties, however it does have distinct elements. The debate itself, alluded to in Chapter 1, emerged from Richard Weisberg's
Poethics and Other Strategies of Law & Interpretation. Therein, Weisberg makes the case for a rather restrictive listing of texts that should find their way onto Law and
Literature syllabi. Supplying his own proposed course outline, the texts proffered would seem to represent the "usual suspects" from the Great Books of western literature as well as more contemporary "classics."301 Weisberg's argument for such "Great Books" is that they represent common themes found in all literature and indeed are emblematic of those issues that emerge in life and, thereby, necessarily in the practice of law.302 In
Weisberg's opinion, these "Great Books" also have significant theoretical benefit for students as they represent "virtually the sole effective source of postmodern radical thought."303 With that said, he goes on to stress that the importance of such works vastly
301 Weisberg's proposed curriculum includes: William Shakespeare's Hamlet and The Merchant of Venice; John Barth's The Floating Opera; Herman Melville's Billy Budd, Sailor; Toni Morrison's The Bluest Eye; Charles Dickens' Bleak House and Great Expectations; and William Faulkner's Intruder in the Dust and The Town. Weisberg, Poethics, at 117. 302 %>ra note 54 at 121. 303 Supra note 54 at 121. 86 outweighs the requirement for a lawyer's familiarity with contemporary theory: "Lawyers particularly need Shakespeare and Dickens more—infinitely more—than they need
Derrida, Rorty, or de Man."304 Furthermore, Weisberg is quite dismissive of the recent movement to adopt a more "Law and Popular Culture" approach put forth by individuals such as Tony Chase: "Television, film, detective stories, these of course cater to the limited attention span of students today. But what in their lives offers them the chance to delve deeper, to feel more deeply, than the Great Books?"305
Weisberg, however, reserves his most pointed criticism and response for those who question the representation of writing and scholarship within Law and Literature. In his defense from feminist critics such as Carolyn Heilbrun, Weisberg suggests that Law and Literature "has not avoided either feminism or other schools [of criticism]..."306 He points to such examples as the work of noted feminists Judith Koffler and Robin West who "had been centrally committed to Law and Literature studies, approaching both legal theory and a variety of literary texts (most of them from the traditional canon) from a feminist perspective."307 He goes as far as to suggest that Heilbrun (and by extension other feminist and minority scholars) is "ignorant" of the very strong feminist influences in Law and Literature and to mean, by criticizing it as "a male domain," not so much its cast of characters as its choice of texts.308 Pointing to his inclusion of one text by a woman of colour (Morrison's Bluest Eye) as well as the "numerous works of women, minorities, and culturally diverse writers" taught by other instructors, Weisberg does not see the need for further debate but considers the issue "joined." With that said, Weisberg
304 %?ra note 54 at 121. 305Swpranote54atl21. 306 Supra note 54 at 121. 307Swpranote54atll9. 308 Supra note 54 at 119. 87 remains undaunted in his support of the "Great Books" but mindful that the debate will likely not subside:
Although rich and varied, and including authors of different genders, tastes, and backgrounds, this syllabus could also form the basis of any "Great Books" course in a core university curriculum; it thus runs the risk of being criticized for just that reason.309
When Gemmette turns to the results of her survey, she notes at least two significant trends. Firstly, in characterizing her list as an "emerging Law and Literature
Canon," she recognizes something of a departure from Weisberg's proposed curriculum.
Indeed, based on the sheer number of texts included in her study, Gemmette makes the point that law professors are becoming more wide ranging in their selection and creative in their application of Law and Literature scholarship. There is, however, some commonality. Amongst those texts taught throughout American law schools, she noted
68 works that were found on at least three or more syllabi. Comprising works by such authors as Wright {Native Son), Turow {Presumed Innocent), Orwell (1984), and Twain
{Pudd'nhead Wilson), the titles do not necessarily conform to Weisberg's proposed canon but they have found wider application amongst practising scholars.310 Could this suggest a trend? Indeed, for Gemmette, it does. This breadth of reading, she asserts, represents a body of work that is "very different" from that which was found in her earlier survey. In her opinion, this is in large part due to "voices like those raised by Carolyn Heilbrun,
Judith Resnik, Jane Maslow Cohen, Milner Ball, Richard Delgado, Jean Stefancic, and
C.R.B. Dunlop."311 Certainly scholars acknowledge the importance of "Great Books," but they are not hamstrung by them either. This is clear when Gemmette turns her
309 %>ra note 54 at 119. 310 Gemmette, "Class Action", supra note 150 at 686. 311 Gemmette, "Class Action", supra note 150 at 686. 88 attention to a rather lengthy list of books that only appear once or twice on the syllabi surveyed. These, Gemmette remarked, were generally works "by women—women often involved in both feminist and minority narratives." The canon, it would appear, was opening however slightly.
When one views the recent choices made in Canadian Law and Literature instruction there is clear evidence of a move away from Weisberg's "Great Books" model and towards more eclectic and inclusive offerings. Although Gemmette stated her belief that Weisberg's model "did not appear endangered," it would appear, at least in a
Canadian context, to be otherwise.312 In fact, just two works in his proposed curriculum find their way onto current class syllabi: Melville's Billy Budd, Sailor and Dickens' Bleak
House. A more accurate starting point for the current curricular choices by Canadian academics appears to be, rather, Gemmette's "emerging canon." Surveying the various syllabi that comprise Appendix A to this thesis, several works from the "emerging canon" have found their way into Canadian courses. The list of these works as well as law schools wherein they are taught are included in the table below:
Gemmette, "Class Action", supra note 150 at 689. 89
Table 1 "Emerging canon" works taught in Canadian Law Schools
Glaspell, A Jury of Her Peers (1917) Dickens, BleakHouse (1852-1853) Queen's Alberta Ottawa University of Western Ontario Melville, Billy Budd, Sailor (1924) Kingsover, The Bean Trees (1988) Alberta Alberta McGill UWO Kafka, Before the Law (1925) . Pigs in Heaven (1994) Manitoba Alberta McGill
Kafka, The Problem of our Laws (1931) Melville, "Benito Cereno" (1855) Manitoba McGill Alberta
Lee, To Kill a Mockingbird (1960) Kafka, The Trial {1925) Alberta Manitoba UWO Melville, "Bartleby the Scrivener" (1853) W.H. Auden, "Law Like Love" (1933) Alberta McGill Toronto Camus, The Outsider (1942) Kafka, "In the Penal Colony" (1914) Alberta McGill
Shakespeare, Measure for Measure (1604) Scott Turow, Presumed Innocent (1990) Alberta Toronto
Richard Wright, Native Son (1940) Heinrich von Kleist, Michael Kohlhass Alberta (1810) University of Western Ontario
Whereas Gemmette noticed an emergence of minority narratives in her 1995 survey, Canadian Law and Literature curricula evidence a conscious choice by every instructor currently practicing to reflect minority narratives to a greater extent.
Principally, this is focused on Aboriginal and feminist narratives however other minority voices also emerge. The manner in which this is affected is, in many respects, quite novel and highly engaging. For example, in the case of the course taught at the 90
University of Saskatchewan by Professor Isobel Findlay we observe a rather apt focus on narrative in the context of Aboriginal rights. Although not a "Law and Literature" course by definition but rather a "Law and Culture" offering, Findlay's course prompts her students to explore "the ways in which law and culture intersect in history and theory."313
This is accomplished by exploring a grouping of essential cases on Aboriginal rights in
Canada: R. v. Delgamuukw,314 R. v. Gladue,315 R. v. Lavallee,n6 R. v. Van der Peet?xl
Given the findings of the Supreme Court of Canada in these cases, the role of language, specifically narrative, would certainly not be lost on a student and discussions thereupon in both a literary and legal context would be of obvious value for a law student.
Furthermore, Findlay's choice of secondary material emphasizes these sites for discussion with readings on narrative, marginality, agency, and race. It also allows her students to expand their "reading" of the law outside the obvious examples of text to include cultural and historical references that are of equal significance. In her class at the
University of Western Ontario, Professor Mysty Clapton engages students through the use marginalized narratives found in Margaret Atwood's Alias Grace and George Elliott
Clarke's Execution Poems. Where Atwood's work prompts a discussion on reproductive rights and Clarke's on the racialized application of the death penalty in Canada, both works function as excellent examples of counternarrative which is a specific topic
Clapton has chosen to explore. While others certainly exist and may be found in
Appendix A, Professor Rebecca Johnson of the University of Victoria adopts a very engaging approach towards feminism in her course offering. Gender, narrative, and
313 Gemmette, supra note 150 at 690. 314 Supra note 26. 315 [1999] 1 S.C.R. 688. 316[1991]1S.C.R.61. 317 [1996] 2 S.C.R. 507. 91 representation, amongst other subjects, are explored in the various films chosen in this
"Law and Culture" course including the provocative Roshomon by Akira Kurosawa.318
Given Weisberg's earlier comments, it is rather interesting to note the wide variety of media selected by Canadian law professors in their unique instruction of Law and Literature. Weisberg's derision at the pandering of law professors to their students' diminished attention spans does not appear to have been heeded by Law and Literature professors generally and, in particular, Canadian legal academics. A survey of Appendix
A reveals source material ranging from statute and case law to film and music as well as art, both fine and otherwise. Some Canadian Law and Literature professors have also chosen to structure their courses thematically, resulting in unique subject matter for their students to engage including the detective novel, science fiction, and film. While arguments may be made by some challenging the relevance of these works to a legal curriculum, each professor makes clear their pedagogical choice. Most often, their unique approach through popular culture is intended %o accurately convey either an historical or contemporary understanding on the law that may not be immediately accessible through the classics. Ironically enough, such progress within the academy actually references some of the initial efforts within Law and Literature as today's broad and media-rich curricula reflect the earliest efforts by Wigmore and Wambaugh in their expansive reading lists. The goals, again, are similar: an engagement by students with creative works through which they may view the law; and, cultural touchstones by which law students may gain some humanizing effect.
318 Kurosawa's film involves a multi-perspective retelling of a rape. Over the course of the film we see significantly different versions of a common set of facts reinterpreted by its characters. Kurosawa's film has resulted in a phenomenon described as the Roshomon Effect which involves differing perspectives of similar experiences. I wish to thank Professor Richard Devlin for bringing Kurosawa's work to my attention. 92
Chapter 4: How a Canadian Author Speaks: Some Lessons on Race and Erased Narratives in George & Rue with an Application to Recent Canadian Jurisprudence on Race319
1. Introduction
The late advent of a Canadian legal literature as discussed in the previous chapter has recently resulted (relatively speaking) in a critical mass of works produced since the
1930's years from which a uniquely Canadian legal scholarship might emerge.320 With relatively few examples of Law and Literature scholarship published by Canadian legal academics in the last thirty years of which even fewer concentrate on Canadian literary works the question begs itself: should Canadian literature have a place within the
Canadian legal academy?321 Although put forward in a more general sense within an
This title references Richard Weisberg's seminal article "How Judges Speak: Some Lessons on Adjudication in Billy Budd, Sailor with an Application to Justice Rehnquist". Like Weisberg, I will employ a "law in literature" approach within this chapter using the work of George Elliott Clarke as a lens through which the Ontario Court of Appeal's recent decision in R. v. Hamilton might be interpreted. In addition, the chapter also references Harry Arthurs' much discussed report on the status of legal education and research in Canada. I would suggest that work such the use of literature as a means of research "on" law contained in this chapter moves towards Arthurs' goal of bringing law to life and a more complete study thereof. 320 I do not wish to suggest that literary works used within a Canadian law "in" literature framework necessarily be restricted to those that concentrate on legal subject matter as there are clearly examples where insight may be gleaned from works that are not overtly legal in their focus. Rather, I adopt the premise that if Canada follows a similar evolutionary trend in its approach to Law and Literature as that found in America that works with legal subject matter will inevitably produce scholarly attention amongst legal academics and lawyers generally but they need not be restricted thereby. 321 There has been a limited amount of scholarship to emerge from -the Canadian legal academy on Canadian legal literature or applying a uniquely Canadian approach to a Law and Literature analysis. See e.g. Rosalie Abella, "Law, Literature, and Identity: Seeking Equality" (2000) 63 Sask. L. Rev. 1; C.R.B. Dunlop, "Literature studies in law schools" (1991) 3:1 Cardozo St. in L. & Lit. 63; Rebecca Johnson "Confronting the bogeyman: Latimer, and other fearful tales of murderous fathers and monstrous children" (2001) 64:2 Sask. L. Rev. 591; and Ed Morgan, "In the Penal Colony: Internationalism and the Canadian Constitution" (1999) 49:4 U.T.L.J. 447. It should be noted that Professor Isobel Findlay has published in this area and currently teaches at the University of Saskatchewan College of Law however she is tenured to that university's Commerce Department. See Isobel Findlay, "Discourse, difference and confining circumstances: the case of R. v. Gladue and the 'proper interpretation and application' of s. 718.2(e) of the Criminal Code" (2001) 10:2 Griffith L. Rev. 225; and "Just expression: interdisciplining the law and literature" (2000) 63 Sask. L.Rev. 49. 93
American context, this question was posed by Richard Weisberg as the preface to the paper on which this chapter is modeled:
The normal subject matter of the law review is, of course, statutory or adjudicatory prose. Through compilation, comparison, and interpretation of this matter, the legal analyst attempts to predict, criticize, and suggest. The writer may thereby enrich a particular area of law and provide ideas to which judges, lawyers, and others may refer when analogous issues arise. Why, then, should we break the pattern and devote law review space to a work of pure fiction? How can we justify substituting imaginative for legal prose? Do we not intrude sufficiently into the abstract in jurisprudential pieces without adding literary art to the legal canon?322
Weisberg responded with three reasons for the inclusion of literature in legal scholarship that have some weight when viewed in a latter-day Canadian context. Firstly, he asserts that "legal analysts, in fact, have long employed fiction to illuminate law."323
While certainly practiced to a lesser degree in Canada, it does not take much searching to find several examples of jurisprudence and legal commentary that have benefited from literary analogy or insight.324 Secondly, Weisberg notes the trend of "some legal writers to ignore fiction in favor of more fashionable 'extrinsic' methodologies [while] other distinguished scholars continue to find its influence irresistibly beneficial."325 Although
Canadian legal academics in their formalist, doctrinally-based approach to legal
322 Supra note 57 at 2 [emphasis in original]. 323 Supra note 57 at 3. 324 See e.g. R. v. Hordeski, 2005 MBCA 138 at para. 5 (CanLII); CIBC Mortgages Inc. v. Walji, 2001 ABQB (Mast.) 169 at para. 1 (CanLII); Boreham-Snider v. Larsen, 2008 CanLII 199 at para. 15 (ON S.C.) (CanLII); Condominium Plan No. 992 5205 (Owners) v. Carrington Development Ltd., 2000 ABQB (Mast.) 573 at para. 1 (CanLII); Ralston v. Formich, 1992 CanLII1652 (B.C.S.C.) (CanLII); Espino v. Canada (Minister of Citizenship and Immigration), 2006 FC 1255 at para. 1 (CanLII); In re Snowball Estate, 1941 CanLII 20 at para. 21 (ON C.A.) (CanLII); R. v. J.S., 2005 BCPC 556 at para. 11 (CanLII); R. v. Moore, 2004 CanLII 4354 at para. 23 (ON S.C.) (CanLII); 2703203 Manitoba Inc. v. Parks, 2006 NSSC 6 at para.8 (CanLII). R. v. Wetmore, [1983] 2 S.C.R. 284 at 295; Retail, Wholesale, and Department Store Union, Local 544 v. Saskatchewan, 1985 CanLII 184 at page 12 (SK C.A.) (CanLII); R. v. Patrick Robert Ehnes, 2007 NWTTC 4 at para. 27 (CanLII); Betts v. Norris, 1991 CanLII 2413 at p. 1 (NB C.A.) (CanLII); Her Majesty the Queen v. Jararuse, 2008 NLTD 4 at para. 5 (CanLII); and Desmond Manderson & Paul Yachnin, "Love on Trial: Nature, Law, and Same-Sex Marriage in the Court of Shakespeare" (2004) 49 McGill Law J. 475. 325 Supra note 57 at 3. 94 education and scholarship have only recently acknowledged the benefits of interdisciplinarity the implications are similar when the recent rise in Law and Literature instruction within Canadian law schools is acknowledged. Thirdly, Weisberg makes a reasonable case for the acknowledgement that, like literature, law is a social document constructed by the citizenry; many of whom are not members of the immediate legal community. Just as lawyers, judges, and legislators chronicle society's transgressions and prohibitions in case law and legislation, authors document their own interpretation of contemporary society within their writing. As such, "some literary texts so richly contribute to our understanding of the law that it would be a mistake to ignore their implications for legal analysis."326 The insight expressed in these works is often more profound than that expressed in "the utterance, on similar subjects, of judges, legislators, administrators, or law professors."327 If this is the case, certainly such works must exist within Canadian literature.
Although other equally engaging works exist, George Elliott Clarke's George &
Rue provides an excellent opportunity to explore the potential for interplay between
Canadian literature and the legal academy.328 Preceded in 2000 by a collection of poems entitled Execution Poems on the same subject matter, the latter novel followed in 2004.
Both works have received critical and popular acclaim with their respective receipt of the
Governor General's Award for poetry and an inclusion on the International IMP AC
326 Supra note 57 at 3. 327 Supra note 57 at 3. 328 While a more complete bibliography will undoubtedly be compiled at a later date, works such as Margaret Atwood's Handmaid's Tale and Alias Grace, George Ryga's The Ecstasy of Rita Joe, David Adams Richards' The Bay of Love and Sorrows and Mercy Among the Children, Joy Kogawa's Obasan, Alice Munro's Who Do You Think You Are? ", Mordecai Richler's The Apprenticeship ofDuddy Kravitz and Solomon Gursky Was Here, James Reaney's The Donnellys, John Murrell's Filumena, Sharon Pollock's Doc, and Anne Marie MacDonald's The Way the Crow Flies are but a few examples of Canadian legal literature or works that might benefit from a Canadian law "in" literature analysis. 95
Dublin Literary Award's long-list. Clarke's fictionalized retelling of the "judicial
murder" of his matrilineal cousins challenges the reader to look beyond the
conventionally accepted legal documentation of judicial fact and acknowledge an equally
relevant (and possible) counternarrative that qualifies a racial dynamic in not only the
case of his long-dead cousins but also those of African-Canadians today. Although not a
lawyer by training but rather a literary academic, Clarke's alternate retelling of the events
which preceded George and Rufus Hamilton's murder of Fredericton taxi driver Nacre
Pearly Burgundy transcends the specificity of local fact and speaks to a larger reality for
an African-Canadian experience within the Canadian legal system that is both historical
and, as I will demonstrate with reference to recent case law, contemporary.
In completing this analysis, I intend to demonstrate not only how a piece of
fiction (or, in fact, any work of literature) might inform an understanding of Canadian jurisprudence but also the significance and capacity for literature to cooperate with the
law in its excavation of previously erased narratives from the archives and case files.
2. Blackening the Page: The Black Acadian Tragedy of George and Rue
Like other works of popular criminal fiction, Clarke provides a disclaimer for his novel:
Though based on several actual persons and one actual crime, this novel employs facts not found in mere trial transcripts—the scratchy songs, the mouthed bits from blues. George and Rufus Hamilton always lived outside boundaries (including knowledge, including history, including archives). They are "encompassed" here only by unrestrained imagination. This is the only truth in this novel whose English ain't broken, but blackened.329
George Elliott Clarke, George & Rue (Toronto: Harper Collins, 2004) Disclaimer. 96
Clarke's intent, however, is not akin to the true crime novelist's desired litigation avoidance or sensationalized inference of fictionalized facts but instead is a self- reflexive declaration to his reader regarding the documentary and imaginative foundation of the work. Clarke had himself been unaware of his cousins George and Rufus
Hamilton as well as their unspoken, bloodied legacy until told by his mother just prior to her death. Convinced that this deathbed declaration was intended to spur the reclamation of his family's genealogical narrative, Clarke began to piece together a narrative of his own. The most obvious sources he uncovered included:
some fifteen hundred pages of trial transcripts, execution-related telegrams, forensic accounts of three violent deaths, George Hamilton's poignant diary of personal redemption (via Salvation Army-based Christianity), the police-court papers, letters to the Governor-General pleading for clemency- or for execution sans delay, the newspaper accounts (from early January 1949 up to the end of July 1949), [and] the relatively brief letter of Rufus Hamilton asserting that he had been 'framed' by persons unknown.331
Albeit copious, Clarke was concerned that the documents failed to acknowledge a necessarily racial and racist element to the trials that he perceived in the trial transcript as well as the acknowledged history of African-Nova Scotians (or, as Clarke coins,
Africadians) within the Maritime Provinces. By fictionalizing his cousins' historiography, Clarke referenced but was not strictly bound by the historical record he
Clarke notes that, as news of his upcoming novel surfaced, surviving members of the actual murder victim's family wrote objecting to the publication. Upon publication, the victim's eldest daughter spoke to various media outlets in an effort to discourage the public from purchasing the novel. Clarke goes on to note that no such response was forthcoming from the family after the publication of his earlier collection of poems and suggests that, to some, "the lady had not condemned my book of poetry because she had presumed that that it could never threaten to become a bestseller (although, ironically, it was—and remains—a popular title); however, it was also clear that she eyed the novel as a potentially lucrative commodity." Kristina Kyser "George and Ruth: An Interview with George Elliott Clarke about Writing and Ethics" (2007) 76:3 U of T Quarterly 861 at 868. 331 Ibid, at 869. 97 had unearthed. In doing so, he was able to expand the scope of inquiry well-beyond that proffered in court and allow his character-ancestors to become emblematic of a larger Africadian community and reality. In his words, this was done "not to surrender to stereotypes, but to indulge in (social) realism."333 The final sentence of Clarke's disclaimer functions as a double entendre that speaks to both his method and intended results. The choice to infuse his work with vernacular Africadian speech was a conscious, not simply stylistic, one by the author meant to contrast with the "official" white language of the legal system wherein African-Nova Scotian voices had been ignored, the subject of objection, or, at worse, erased from the record by choices judicial and archival.334 By allowing these necessarily black voices to speak through pages blackened with ink, Clarke has excavated and reclaimed a narrative that stands in insightful opposition to the conventionally accepted historical and legal narrative with evidence previously deemed irrelevant by both judge and archivist.
The novel itself is prefaced by a brief account of what most readers would assume to be its central event: the murder of Silver, a.k.a. Nacre Pearly Burgundy. It begins:
In exploring the concept of historiography, University of Toronto English literature professor Linda Hutcheon notes: Historiography, claims historian Hayden White, is a poetic construct; fiction, suggests Bowering, Wiebe, Scott, Findley, and others, is historically conditioned. Therefore to write history (or historical fiction) is (equally) to narrate, to re-present by means of selection and interpretation. History (like realist fiction) is made by its writer, even if events are made to seem to speak for themselves. She goes on to examine White's approach to the differences between the novelist and the historian: Hayden White, for instance, sees the link between the novelist and the historian in their shared 'emplotting' strategies of exclusion, emphasis, and subordination or elements of a story, but [...] the difference in their tasks lies in the historian's confrontation with 'a veritable chaos of events already constituted. Linda Hutcheon, The Canadian Postmodern: A Study of Contemporary English-Canadian Fiction (Toronto: Oxford UP, 1988) at 66 [emphasis in original]. 333 Supra note 330 at 866. 334 Clarke comments that "[i]n drafting George & Rue, I tried, really, to incorporate Black Maritime (Africadian) and white rural speech. Its English could not be standard—or monarchical, but closer to the earth, I mean to the world... Part of what I try to do in George & Rue is pay homage to such raw sincere speech." Supra note 330 at 865. 98
[a] white devil moon haunts the black 1949 brand-new four-door Ford sedan when a black hammer slip out a pocket and smuck the taxi driver's head, from the side. Not just a knock-down blow, the hammer was a landslide of iron. It crashed down unnervingly.335
The account continues as a precis of the event similar to those that preface the reasons for judgment of George and Rufus Hamilton as well as those of other criminal offenders.
Like a judicial summary, the narrator briefly describes the event, its concluded
motivations (a score of "moolah"), and ultimate consequences ("The struck-down man
breathed less and less—like he was calmly asleep.").336 Contrasting this brief account
with the lengthier body of the novel, Clarke challenges his reader to acknowledge that
while the murder of Burgundy was a brutally tragic event and the obvious focus of a trial
it was not the only event of relevance in this matter. A closer reading of the account's
two-tone colour imagery in which even blood runs black reveals Clarke's belief that the
crime must not be viewed through a simplistic "black and white" reading of guilt and
innocence. Instead, Clarke asserts that the events must be read in a context that
acknowledges the racialized dynamic facing both brothers that led them to a New
Brunswick courtroom: something the Canadian legal system failed (and fails) to do.337
Clarke divides his novel into three thematically linked sections that reference the
act(s) of violence contained therein: Whip, Hammer, and Rope. The first stems from two
conversations Clarke had with relatives about a year following the revelatory discovery
of his cousins. In his first conversation, with an uncle who was a child when the
Hamiltons were convicted and hanged, he was told that "[George and Rufus] had been
335 Supra note 329 at xi. 336 Supra note 329 at xi-xii. 337 Clarke's novel functions as an excellent example of Delgado's concept of "counterstory" put into practice. See infra note 98 at 552. 99 beaten with a bullwhip."338 He later spoke with a genealogist-cousin who had discovered
"that the Hamilton clan had come to Nova Scotia from a vicious plantation in Georgia during the War of 1812."339 While each piece of information on its own was significant, in concert they suggested a discomfiting context for the violence experienced and expressed by the brothers. Keenly aware of the practice of spousal and child abuse within the African-Nova Scotian community that predated his own birth by "decades or centuries," Clarke concluded not only that the violence visited on both boys by their parents was an extension of their slave ancestors' oppression but that "the violence that
George and Rufus Hamilton inflicted upon their white victim in Fredericton, New
Brunswick, in 1949, was rooted, perhaps, in the violence of slavery itself, carried forward in the family, although in a different country and a new century after leaving the United
States."340 Clarke's novel, therefore, is intended to place the Hamilton's murderous act in both a cultural and historical context. Furthermore, Clarke's contextual approach references a model for adjudication that has recently received significant judicial consideration and will be discussed later in this chapter.
The reader is introduced to the Hamiltons long before any criminal intent could have entered either George or Rufus's mind yet, as Clarke would seem to suggest, at the very moment when the precursors to their "thug-ugly" crime were established for the brothers. Set in the historic African-Nova Scotian community of Three Mile Plains within the province's Annapolis Valley, we meet George and Rufus inferentially through their parents, Asa and Cynthy, on the occasion of Rufus's birth. Asa and Cynthy first crossed paths at a barn dance where Asa had been taken by the young woman's beauty
338 Supra note 330 at 866. 339 Supra note 330 at 867. 340 Supra note 330 at 867. 100
and asked her for a dance. Their romance culminated in a marriage and continued in
passion during their first year together as husband and wife. With the resultant birth of
. their first son, George, "the sweetness turned ugly," their fortunes soured, and soon Asa
had another mouth to feed with the subsequent birth of Rufus.341 Faced with these
challenges, Asa came to the conclusion that his family was "the accursed of Three Mile
Plains" however Clarke is careful to point out that "they had no monopoly on that
curse..."342 Raising Asa's personal history as a "fifth-generation Hamilton in Nova
Scotia, and the third-generation to call Three Mile Plains home," Clarke asserts that the
Hamilton's unfortunate circumstances are not the product of providence or misfortune
but a direct result of a legacy of racism that marred (and mars) an entire province.343
Asa's inheritance of a "shack" located on "scraggly land" may have been personal in
nature but it references the documented practice of providing land grants to Loyalist
blacks on the fringes of white settlement where the parcels of land were often rockbound
and the prospect of successful crop yields slim such that the resultant poverty virtually
guaranteed the subsequent ghettoization of those Black communities.344 As the novel
unfolds, examples of this legacy are exposed further.
Echoing events not found in court transcripts, the novel's extended portrait of the
Hamilton family suggests how a legacy of racist violence is made manifest within the
family home. We learn that Asa worked as a meat cutter relegated to the menial and
maniacal task of "clean[ing] up left-over animal bits, shovel[ing] away offal and shit and
vomit, and kill[ing] cows himself, bash[ing] in their skulls, slashing] open their throats,
341 Supra note 329 at 9. 342 Supra note 329 at 10. 343 Supra note 329 at 10. 344 Donald H. Clairmont & Dennis W. Magill, Nova Scotian Blacks: An Historical and Structural Overview, 4th ed. (Halifax: Institute of Public Affairs, 1973). 101
to hurry on cessations." Tainted by the blood and guts that stained his clothes and
"slid inside his shoes, forming red, comfy extra socks," Asa was unable to shed this
brutality and often "took this violence home with him, bundled up with meat scraps."346
Susceptible to drink and short of temper, Asa's philosophy of "belt straps and bullwhips
on the ass" was visited on all within the house.347 One account is particularly brutal.
Desperately poor, Cynthy believed that money was a "salve" to her problems and sought
out a "dress whose red was opulent" as her temporary solution. Spiriting away what little
change Asa had in his pockets after he would come home drunk, Cynthy stashed this money away until, one day, she saw a "sumptuous" crushed velvet dress in the windows
of Madame Carat's Paris Dress Shop in town. Upon returning home with the dress under her arm she met Asa who had "already discovered the open hole in the floor beneath their bed and had decided what it meant."348 Hotly greeted by her husband's fist in her face,
Cynthy suffered the following discipline witnessed by her sons:
She laughed, blood jerking from her nose: "Dumb-ass nigger! Her venom was her champagne—in that hut where perfume itself seemed derisory. While his infant wailed, Asa uncoiled his belt from bis pants, made a loop of that leather, then straddled his fallen, bleeding wife and treated her like he was tenderizing horse meat. Then he tore the clothes right off Cynthy's squirming, writhing body and raped her screeching, on the blood-muddied floor. George and Rufus wailed, watched. Their pa's curses lashed out like a pimp's coat-hanger wire—slick, hot, whipping. Then he burnt Cynthy's brand-new red dress in the woodstove's red fire. Cynthy imagined hammerin a spike through Asa's bony and backward heart. Such a brittle target should splinter like dry chicken bones, releasing marrow like
Eventually Asa's violence was revisited on himself when, on Christmas 1941, he lunged at Cynthy only to be struck down by a fifteen year-old Rufus with a two-by-four.
Supra note 329 at 11. Supra note 329 at 11. Supra note 329 at 11-12. Supra note 329 at 24. Supra note 329 at 25. 102
Spurred on by his mother's conflicted exhortations of, "Kill him! Kill him, boy! Oh no!
Don't kill him! Oh God, don't kill him...," Rufus batters his father with the board and kicks in his face such that "[b]lood come shitting out."350 Bringing the violence full circle, Rufus stands over his bloodied father and spits out words that easily could have come from a slave master's mouth: "I'm a-gonna break ya, nigger. Ya'U wish to God ya ain't born." The insight for the reader on this tragic cycle of violence comes from
Rufus's acknowledgement of a cruel excitement as he struck his father: "The worse he pounded Asa, the worser his own heart pounded in return."352 Certainly, Clarke would suggest, this feeling was not unlike the one Asa had felt some years prior nor that experienced by his father before and so on.
While there is a clear pedigree of violence from Asa, the novel also evidences the boys' early exposure to crime at the hands of their mother. Recruited by Cynthy to sell bottles of rum and bootlegged cigarettes to his classmates at school in order to supplement their household income, George was quickly intimidated "by the big boys, aged sixteen in Grade Four" and handed the task off to Rufus who turned out to be a natural salesman "and prospered at this trade."353 At a young age, Rufus demonstrated a degree of criminal charm by venturing into the nearby town of Windsor where he would not only talk up the white cashiers at the local grocery store for candy but, when their backs were turned, he would slip undetected into their coatroom and empty their purses and coat pockets. Although not directly culpable, George became complicit in his brother's crime by agreeing to keep the crime secret for the price of half of Rufus's ill-
350 Supra note 329 at 46. 351 Supra note 329 at 46. 352 Supra note 329 at 46. 353 Supra note 329 at 38. 103 gotten gains. This act was viewed by Rufus as a betrayal and one he would not soon forget.
Troubling the accepted narrative of the Hamilton brothers as murderous monsters, the novel questions the assertion that their original sin was absolute and instead proposes that their criminality was conditioned through the intersecting contexts of race, poverty, and patterns of violence. As it is revealed, both men are not without redemptive qualities.
Searching for a means to "survive an incandescently ugly papa" and an "operatically sluttish mama," Rufus stumbled upon the abandoned house of a long-gone local minister.354 "Still trying to discover a life, a way to make himself a living," Rufus found within the house already overgrown with grass and leaves as well as walls covered by sepia-toned pictures an "elegant ebony" grand piano that had "the trunk of a pear tree coming up through one side of its body so that only some keys could be played..."355
Inspired to reference "memories of radio tunes that came out of black women's redemptive mouths," Rufus's foray into a one-handed discovery of jazz and blues was not grounded in training but temper.356 The focus of his temper is made clear through allegory as he notes "the gorgeous congress of Negro and Caucasian keys" that are "so capable of beautiful intimacy here, but not in Three Mile Plains, not in Nova Scotia."357
Foreshadowing later events, his anger is visited upon the keys by a one-handed hammering of melody and misery that allows Rufus to escape, however temporarily, his fated plight. Ultimately, Rufus's sanctuary is taken from him as the piano is carried off
Supra note 329 at 39. Supra note 329 at 40. Supra note 329 at 40. Supra note 329 at 40. 104
by the pear tree in which it is entangled and, "still lusting to employ professionally
dextrous fingers," he switches his interest from the piano to the pistol.358
Comparing both brothers, Clarke notes that "[w]hile Rue had been in the music
field, sort of, George was in the cornfield. Rue beat on a banged-up piano; George beat
on two broken-down mules."359 Unlike his more urban(e) brother, George was the image
of a Romantic (albeit not romanticized) farmer. Content in the fields that surrounded
Windsor, Nova Scotia "grubbing trees, toting away rocks, planting crops, and pulling up weed roots," George had found "[a]n honest living" at the young age of fourteen.360
Attuned to the passage of the seasons, George welcomed the blossoming of spring amidst
fields of crabapple, clover and strawberry and tended to the surrounding crops in summer
allowing for "staged funerals of ripe fruit and vegetables in autumnal cauldrons."361
Felled game and fallen apples in autumn gave way to the cold, dark days of winter. Like
Rufus, however, this idyllic existence was not without some foreshadowing to later, more
criminal, events. Farming had, by necessity, made George strong in his youth and the way he went about his quotidian duties was not that distinct from his later criminal
endeavours. George's work on the land had made him a proficient lumberjack who
"could swing a big axe like a little hammer"362 yet Clarke's analogizing of the task necessarily leads to later comparisons within the novel. Not simply "hack[ing] down maples and hack[ing] up ash," George's hands were "bad-ass carpenters, ingenious mechanics" that did damage to the trees not unlike the damage that would be done to
Burgundy: "He poured his axe [hammer] into the tender, virgin flesh of pines. They
358 Supra note 329 at 42. 359 Supra note 329 at 42. 360 %?ra note 329 at 42. 361 Supra note 329 at 44. 362Swpranote329at43 105 quivered every time he stroke."363 Furthermore, in spite of the prospect of earning an
"honest living" from the land, George's farm work did not make him honest: "He was still an amateur bootlegger, though less an expert thief. Once, though, he killed a baby bear, skinned it, and passed off the hide lucratively as fox fur."364
At seventeen and sixteen respectively, George and Rufus's adolescence was cut short by the deaths of their parents which occurred in quick succession: Asa at the hands of a minister who had been having an affair with Cynthy, and Cynthy, already afflicted by a stroke, by a heart attack while on her knees cleaning a toilet "in service" to a white family in Windsor. While Asa's demise had "emancipated" both brothers, allowing them to consume comic books as well as Asa's share of food and his remaining liquor,
Cynthy's death had left them orphaned and facing a harsh reality in Three Mile Plains where they could only see "more struggle, more suffering, more sickness."365 While they stayed together for a brief time in their "Ma-and-Pa shack," necessity and circumstance forced them to temporarily part ways.
After the tragic drowning death of his sweetheart, Rufus decided to leave Three
Mile Plains and board a train to Halifax. A garrison city in the midst of the "Not-Again
World War," Halifax was "a San Francisco of vice with a San Franciscan hill," a "Venice without canals," and "the Sodom of the Atlantic—a gold mine of prostitution." In addition, Halifax was (and is) a city defined by its geography where the imperial installation of Citadel Hill did not simply split the peninsula "between the smoke stack
North End and the rose-trellised South" but effectively drew a not-so-subtle colour line
363 Supra note 329 at 43 364 %?ra note 329 at 46. 365 Supra note 329 at 52. 366 Supra note 329 at 62-63. 106 separating the city's historically ghettoized African-Nova Scotian community from its more affluent, predominantly white population.367 The city's longstanding racism was not lost on Rufus upon his arrival. Tenuously acquainted with members of the "city's
Negro district, Africville," he set out in search of available work only to discover that a position as a railway porter was barred by a waitlist "eight-hundred Coloured guys long." With few other options, he still acknowledged that enlisting in the military would not be a good option as it would inevitably result in "peeling potatoes in the Royal
Canadian Navy, serving dummkopfs who'd call him nigger while gobbling his hash browns and sausages. There'd be fights; he'd be brigged and discharged, if he weren't shot. Not for him."369 Ultimately, his artistic past opened the door of a "Brunswick
Street Bordello" where he was employed for a brief time as a one-handed jazz pianist because, due to his prior "training" on the pear tree-impaled instrument, "he knew how only one half the piano sounded.'"'" It was in the bordello that Rufus met Purity
Mercier, a prostitute, and began a lustfully short affair with her. Upon discovering that
Purity had enjoyed Asa's custom, Rufus delivered a beating on her that was not unlike those he had witnessed on Cynthy at the hands of his father. Summarily dismissed by his employer who stumbled upon the beating and who "loathed commotion and upset,"
Rufus found himself on the street again.371
Unlike his brother, George's transition from Three Mile Plains was initially only a short journey down the road to Windsor. Funded by slightly more than half of the
367 Supra note 329 at 62. For a discussion of the segregated nature of Halifax geography see Judith Fingard et al, Halifax: The First 250 Years (Halifax: Formac, 1999) at 106. See also Jennifer J. Nelson, "The Space of Africville: Creating, Regulating and Remembering the Urban 'Slum'" in Sherene H. Razack, ed. Race, Space, and the Law: Unmapping a White Settler Society (Toronto: Between the Lines, 2002) 211. 368 Supra note 329 at 64. 369 Supra note 329 at 64. 370 Supra note 329 at 65. 371 Supra note 329 at 68. 107 proceeds from the fraudulent arson of his family's shack (Rufus received the remainder),
George took a position on Pius Bezanson's farm where he slept in the barn and spent his days content in doing a multitude of odd jobs around the farm. For his services, George received ten dollars a month. It was not until George began courting the young woman he would eventually marry, Blondola, that he questioned his employment situation.
Although Blondola had been impressed by George's "drawl, his laugh, his fearless—and sober—hard work" he was very aware that "[t]he big drafty, stinky barn he slept in was not the site for wooin a swell young gal..."372 Caught up in the idealized and distorted imagery of wartime propaganda and his own comic book fueled daydreams, George believed he could secure his future by going off to war where "he could ship overseas, kill a clutch of Krauts, bulk up into a he-man, lift gold rings off married corpses, juxx some British quim, then return, swaggering, and marry Blondola with much hoopla..."
With the promise secured that Blondola would wait patiently for his safe return, George set off to war.
George's time in the military was short-lived as his experience failed to live up to its idealized expectations and was rather more like the one Rufus had predicted. Upon enlistment, George's service through basic training ("bastard training") was not limited to his preparation for a hypothetical battle but also included service to the white soldiers as a "valiant cook and heroic janitor" alongside "the Indian and the Coloured."374 Although ready for battle, George did not join his comrades as they deployed overseas but stayed behind where "his weapons would be a mop, a broom, [and] a paring knife."
372 Supra note 329 at 72-73. 373 Supra note 329 at 73. 374 Supra note 329 at 74. 375 Supra note 329 at 75. 108
Indignant at what he concluded to be "blaytent prejudis," he went AWOL and, after a brief sojourn in Montreal, eventually served his country in the merchant marine. At the conclusion of the war in Europe, George exited the merchant marine into the arms of the awaiting military police who promptly arrested him as a deserter. Unwilling to "mop floors or crack eggs without whining," George was assessed as "Bad" and discharged from the army because he was determined to be "[u]nable to meet the required military physical standards" in spite of a generally clean bill of health.376 One possible explanation for this assessment emerges from the report of an army psychologist who concluded that George had a "[pjsychopathic [personality" with "a negative attitude toward the army."377 In addition to a documented history of dishonesty and theft, George was determined to be of "doubtful stability" and possessing an "undisciplined behavior" that rendered him unacceptable for army service.378 An alternate (and more likely) explanation was that his dismissal was premised on race and shrouded in medical terminology to mask its bias.
With his services no longer required by the military, George fled to Montreal as he remembered it to be "the last place he'd been borderline happy before joining the
Murder Marine."380 Securing a position in a nightclub, George returned to the kitchen as a dishwasher because "[t]he white male clientele would not tolerate a Coloured bouncer
376 Supra note 329 at 76-77. 377 Supra note 329 at 77. 378 Supra note 329 at 77. 379 It was not uncommon for physicians to ascribe a diminished mental capacity to African-Canadians during mis period. In the case of Daniel Perry Sampson, the court-appointed psychiatrist ascribed a diminished mental capacity to the African-Canadian defendant based on his race. See David Steeves "Maniacal Murderer or Death Dealing Car: The Case of Daniel Perry Sampson, 1933-1935" Osgoode Society for Canadian Legal History [forthcoming 2009]. 380 %?ra note 329 at 78. 109
but could not object to a Coloured dishwasher."381 Unable to earn what he considered
"serious money" from the meager pay the nightclub owners "flipped his way in the form
of grimy coins," George took to wandering the late-night streets with a jeweler's hammer, screwdriver, and flashlight for quick "smash-and-grab jobs", that "netted negotiable rings, watches, smokes, and razors" or "whatever was portable."382 After three months of theft, George was discovered by two police officers who stopped him on the street and "without even a 'bonsoir,' frisked him roughly."383 The officers' initial search uncovered George's burglary tools and a subsequent search of their suspect's room "excavated goods impossible for a humble dishwasher to afford, including a $4,000 fur coat, which George claimed a dancer had given him for safekeeping."384 "Unable to prove his innocence," George was sent to Bordeaux Prison for three months ("one month for the tools, two months for the fur coat").385
After completing his sentence and wary of what Blondola would think of him as a penniless jailbird, George took a position from a former inmate he had met at Bordeaux
Prison concluding "deliveries" to and from "strange destinations." One evening in April
1946, upon discovering "a man's body with a bullet hole in the forehead" as his cargo,
George quickly decamped to Halifax.386 Although Halifax was a city transitioning between wartime and peacetime, little had changed since his brother had first visited.
With a decommissioning navy and significant outmigration there was little work for a black man to be found anywhere.387 Unwilling to return to the tasks of shining shoes,
381 Supra note 329 at 79. 3825wpranote329at79. 383 Supra note 329 at 80. 384 Supra note 329 at 80. 385 Supra note 329 at 80. 386 Supra note 329 at 82. 387 Fingard, supra note 367 at 140. 110 carrying bags, or washing dishes, George aspired to greater things and tried unsuccessfully to find work on the docks as a stevedore. Unemployed, George's thoughts returned to farming but he did not want to return to Pius Bezanson's farm.
Deciding that "he'd had enough of Nova Scotia," George surveyed his options on the east coast. Ruling out Prince Edward Island because of its size and Montreal because it was
"a burgh of cops and jail," he decided that he would ask Blondola to marry him and accompany him to Fredericton because "[i]t was far enough from Three Mile Plains to suggest they'd moved up in the world but not so far as to make it impossible to visit."388
George may have perceived his relocation to Fredericton "[t]hat homey town with no Coloured slum," as an escape from the conditions that had plagued his past but the city's latent racism fated the Hamiltons to an experience virtually identical to that which they had found in Nova Scotia.389 Like Halifax, Fredericton was a city divided on racial lines by geography with the Saint John River cleaving the "mansions, government, elmed and lilac'd streets" of the south from Barker's Point on the north "where most Coloureds lived": a "place of huts, cops-and-robbers, lumber mills, and railway yards" where the
"Ku Klux Klan clucked and conclaved occasionally."390 Blissfully oblivious to the conditions that surrounded him because of his newfound love and an honest contentment in his racially-prescribed employment as a part-time labourer and itinerant farmer on the fringes of the city, George wrote to his brother extolling the city and requesting a visit.
Fed up with Halifax as a city where, "there be too much liquor that killed, too much battery acid thrown into jealous eyes," Rufus viewed his brother's missive as a
Supra note 329 at 84. Supra note 329 at 85. Supra note 329 at 86. Ill
means of escape.391 Indeed, Rufus perceived Fredericton to be a fertile locale: not for the
apples and pears his brother harvested but for the pockets that were equally ripe for picking. Upon his arrival, Clarke uses Rufus to emphasize that, although separated by
distance and time, Fredericton festered with the same systemic racism found in Three
Mile Plains and necessarily produced an equally familiar fate. This is evidenced in
Rufus's remark that although he was impressed by his brother's two-room home on
Eatman Avenue he was still "reminded... unpleasantly of the now-incinerated homestead back in Three Mile Plains."392 Clarke, therefore, necessarily invites his reader to compare George and Blondola with Asa and Cynthy and allows the generational continuity of systemic racism to foreshadow future events.
For Rufus, however, the impact was more immediate. As someone not favourably predisposed to hard labour, Rufus refused the back-breaking work reserved for blacks and familiar to Asa and George. Instead, he spent his days unemployed and wandering the streets of "Fredtown." Desperate for money, he turned to a ready-known source and attempted to rob a "pimply-faced soda jerk, Omar Bird," by crashing a rock down on the young man's head.393 His withdrawal did not go as planned as the young man slumped down, bleeding and making loud cries for help which were promptly responded to be a nearby police officer. At his trial, Rufus attempted to secure acquittal by lies and misdirection. He alleged that the arresting officer had called him a "nigger" and that he was only helping Bird who had actually been attacked by another assailant.
Rufus's story, however, was transparent and he was eventually convicted and sentenced to spend two years at Dorchester Penitentiary. Sharing a common border situated on the
391 Supra note 329 at 89. 392 Supra note 329 at 90. 393 Supra note 329 at 85. 112
marsh between Nova Scotia and New Brunswick, "the Alcatraz of the Tantramar" also
contained the inescapable racism of both provinces. Like "the other twenty Negro
inmates," Rufus was subjected to "being felt up and clubbed and called niggerniggerniggerniggernigger like it was his number and his name."394 There he remained from January 1947 until December 1948.
During Rufus's incarceration, the name of that "bad man" went unspoken in the
Hamilton's modest Fredericton home.395 Instead, George and Blondola, like Asa and
Cynthy before them, started a family amidst what they perceived to be prosperous and opportune circumstances. A proud father, George brought his wife and first-born son,
Otho, home the following November in the luxury of a black limousine and set to providing for his young family through a variety of jobs on the woodlot, in the kitchen, or simply doing "part-time whatever."396 Five months later, Blondola became pregnant again and George continued to revel in his hard-worn labour and rapidly expanding family. The Hamilton's fortunes, however, soon began to sour noticeably. That winter,
George chose to return to the woods where "he worked even harder than he had in
December '46 or December '47" but when it came time to receive his pay George only received the complaint that his work had been "poor" and merited no remuneration.397
Frustrated, George stole away from camp with an armful of his employer's tools. Shortly after returning home George was arrested, the tools (save one hammer) were confiscated,
394 Supra note 329 at 96. 395 The use of the term "bad man" is referenced in Clarke's scholarly writing wherein he argues that the legacy of African-Canadian criminals ("bad men") such as Rufus Hamilton have been effectively erased and that, as a result, Canadian literature necessarily tells a fundamentally different story of Black criminal experience than that found in American literature which does not have such a deficiency (for good or for naught). The actions of the fictional Hamilton family also mirror those of Clarke's mother and others within the African-Canadian community resistant to acknowledging the presence of an "outlaw" tradition of "bad men" and "bad women." Supra note 144 at 66-67. 396 Supra note 329 at 98. 397 Supra note 329 at 99. 113 and he appeared before the same judge as Rufus but only received a suspended sentence: his second conviction for theft nonetheless.
On the eve of Christmas 1948, Rufus returned from Dorchester Penitentiary with an obstinately "crooked" heart to the Hamilton home only to discover "little cheer," little food, and little else within its four walls. The new year bore George and Blondola a daughter but because George did not have enough money to pay for their doctor's services his wife and daughter were arrested in the city's downtown hospital until the account was settled. Resistant to his brother's suggestion that he find an honest job to help out with the household, Rufus retorts that he refused to take these menial positions
("We's gonna stay slaves forever!") and, even if this had been an option, both he and
George had always been ill-suited for honest work: "Joygee, we is just thieves, pure thieves, We steal firewood, chickens, clothes off clotheslines, even fools' bad ideas."398
George's desperation to solve his lack of "moolah and a lick or two of rum" was met with
Rufus's suggestion that they "stun and rob a man. I ain't sayin he gotta be hit hard enough to kill."399 Faced with another felonious choice, little discussion was needed by both brothers:
George: You was sayin... Rue: You know what I mean... George: That right there. Rue: It's like that.400
Ultimately, given their circumstances, neither brother could see another available option:
"So a hammer was gonna fuck up a head. Skin a skull. There was no other way to make a dollar."401
Supra note 329 at 104. Supra note 329 at 104. %?ra note 329 at 105. 114
The crime itself was more a comedy of errors than a grand heist. Indeed, their
plan "were a foolproof plot, yep. But designed by one fool and one foolhardy philosophe."402 Faced with the option of "[b]reak[ing] into a store, a house, a car, [to] lift
some goods," Rufus correctly interjected that none of those options would produce cash
exclusively.403 Instead, armed with the hammer he had withheld from the police, George
called a cab company and ordered up a cab as well as a victim. Before the cab arrived,
they discussed who would carry out the assault and it was concluded by Rufus that his
brother would be the one: "Joyge, it's your plan, your hammer, and you're the one
carryin it."404 When the cab arrived, George recognized that the driver, Silver Burgundy,
had been the man who had taken his family home after the birth of his first son. The plan
still proceeded. Meandering around the outskirts of Fredericton, Rufus finally directed
Silver to a house just off the Richibucto Road that was "[n]o better spot, amen, to use a
hammer."405 The murderous act itself is described vividly:
A hammer'd hit Silver like a train. His ear—once ringing with music and laughter—were now ringed with blood. A detonation of blood inside the car: a deafening road inside Silver's skull. His head slumped on his neck and spewed red ooze. Moseying blood slid down. Imagine the blood aquariuming Silver's brain. The resistless hammer squashing the egg of the brain, its lobster-paste merde its waspish humming. Then a dynamite of pain. Imagine the whiplash of the hammer, the sizzle of it against the skull, the brilliant cum of blood, accumulating redness, almost like a cloud, and the sussurus of pain, molesting, eclipsing, his nerves. The whinnying blood. Silver's last breaths making a noise like hardwood cracking. To make his skull a bloody egg, smashed open like a pinata, consciousness seeping out, sparkling. The hammer bit into and took away a cleft of ear too, like a hungry dog dragging down a pig. The hammer thudded against the skull with the same lasting tone of piano hammers striking strings. Its solid and sucking ingress
Supra note 329 at 105. Supra note 329 at 109 [emphasis in original]. Supra note 329 at 107. Swpra note 329 at 109. %?ra note 329 at 121. 115
brought on an egress of liquids and sighs. Silver was expectorating blood onto the steering wheel and the back of the front seat.406
In the aftermath, both men tried conceal their crime only to discover that Silver's blood had saturated the cab: "Horror: the blood fuckin leakin through seats, spoutin through upholstery, as if two no-brainers had turned on a tap."407 Equally problematic was their choice of what to do with Silver's body. Rufus decided that George would drive the body to Saint John where it would be left so as "to smear suspicion on niggers and crackers down there."408 After securing a dishonest alibi, George meandered along the province's highways so as not to be discovered stopping along the way for gas, cigarettes, and chocolate. Arriving in Saint John, George headed directly to 47 Station
Street for the company of a local prostitute, alcohol, and food. Still with Silver's body in the trunk, George returned to Fredericton in spite of his promise to dispose of the car in
Saint John. Conscious of his error, George eventually disposed of the car by parking it in brush near both the Dominion Experimental Farm and a set of train tracks. The loyal father then proceeded to a corner store where he bought "twenty-five dollars' worth of groceries, plus baby oil, baby powder, different things."409 Arriving home, he met up with Rufus and inquired if he had any of Silver's money to contribute to the house to which Rufus responded that he had already spent every last dime.
Conspicuous in the midst of the brush, a passing railway brakeman noticed the abandoned car and called authorities. Upon their arrival, the R.C.M.P. officers discovered trace amounts of blood and called in a mechanic so they could examine the locked car further. After opening the trunk for further inspection they discovered Silver's
406 Supra note 329 at 127. 407 Supra note 329 at 132-133. 408 Supra note 329 at 131. 409 Supra note 329 at 148. 116 body. With the discovery, panic and suspicions spread. Shotguns sold out at the local hardware store and the local police concluded that a gang had conducted the killing. The police investigation focused on the usual suspects and "[t]her maniacal manhunt triggered, as usual, raiding of the Negro quarter—'camp'—of Barker's Point."410
Although they had encountered gossip from the residents regarding George driving
Silver's cab, investigating officers, Detectives Michael Evans and Ishmael Stark, did not think that the Coloured man was "smart enough to murder and obliterate the evidence."411 Instead, they thought he could simply assist in pinpointing Silver's last whereabouts. With no promises or compulsions, George was brought to the local detachment where he was interrogated. Although he was let go to return to his wife and children, both officers returned to the Hamilton home where they questioned George further. At that time, the officers attempted to have George admit that the murder had been an unfortunate mistake. In their words, "[s]ome things gotta be understood as accidents, not evils."412 After concluding that his act had, in fact, been an accident and speaking with Blondola, George concluded that the only thing he could do was to confess that Rufus had killed Silver. Convinced that he would return home because bis accident had been just that, George provided the police with an oral statement and then brought the officers to his home where he offered up Silver's charred ring and watch as well as the hammer still caked with ash from the fire in which he had attempted to dispose of the items.
Within the novel, Clarke devotes just eleven pages to both George and Rufus's time before the New Brunswick Court of Queen's Bench in his Rope section; the title
410 Supra note 329 at 156. 411 Supra note 329 at 159. 412 Supra note 329 at 160. 117
necessarily foreshadowing future events. If, as asserted earlier, Clarke's narrative
choices within the novel suggest that an understanding of the brothers' crime necessitates
a broader retelling than the murderous act itself, then, in a parallel fashion, the relatively
slight amount of time within the courtroom not only suggests that the whole truth is not necessarily contained in its four walls but also challenges the judicially-derived "truth" that emerges therefrom as well as the means by which it is procured. As the trial opens, we are introduced to Mr. Justice Jeremiah Chaud. A native-born son of the Miramichi,
Chaud is "an utterly English Acadian" whose colonized subjugation extends beyond the
erasure of his mother-tongue to his complicit perpetuation of the majority's dominance
over minority communities: "he felt it was his duty to ensure that the poor—and all those who were not purely white and English—stayed in their fetid stations: the Mi'kmak, the
Acadians, the Negroes..."413 The epitome of a close-minded judge, Chaud rightfully deplored the crime itself but, even before evidence had been presented, approached both accused with preconceptions and a racially motivated bias: "Is a Negro's laugh pastoral— or pathological?"414 Moreover, that both George and Rufus were black not only exacerbated their crime ("it made a black crime even blacker") but it also failed to alter the only "clear facts" that Chaud would consider: "That the Hamiltons were Coloured didn't alter the clear facts that two men had slugged, robbed, and murdered an innocent husband and father, and then outraged his corpse, all in cold blood."415
After Chaud, the reader is introduced to an equally flawed officer of the court, thirty-year old Crown Prosecutor Alphaeus Boyd. A "bearded, bespectled, sleek, silk- suited" lawyer, Boyd likewise deplored the acts of both men such that he could not
413 Supra note 329 at 174. 414 Supra note 329 at 174. 415 Supra note 329 at 174-175. 118
separate them into constituent actors.416 Indeed, he saw "the two brothers as one deadly
criminal: Rufus-George, with suspect clothes, dirty looks, shifty grammar."417 Although
Boyd expressed racist tendencies in the performance of his duties he, unlike Chaud, was not motivated by malice but rather (and equally indictable) by willful blindness to the
conditions of African-Nova Scotians. Weighing his obligation to go forward with the prosecution, Boyd questioned: "Are the Negroes oppressed? Yes. But they are not trampled in the streets or brutalized in their houses."418 Like Chaud, Boyd is a master craftsman of words and their employment in rhetoric. Unfortunately, this manifests itself in a questionable approach to Rufus's prosecution that blurs the lines between advocate and Crown prosecutor and, unfortunately, treads on ethical toes.
As his trial opened, George betrayed his limited familiarity with Americanized legal popular culture by putting forth a "comic-book-inspired defence he'd even concealed from [his lawyer]."419 Once in the witness box, George looked over at Justice
Chaud and stated, "Your Honour, sir, I object of answerin any questions on the ground they might be discriminating on me."420 After Justice Chaud sought some clarification,
George indicated that he was "pleadin the Fifth Amendment, Your Honour." Following a chorus of laughter from the gallery, George was advised that he was, in fact, not in
"rebellious America" but rather "in His Majesty the King's Province of New Brunswick" where such protection is not afforded and that the proper address of a sitting justice is
"My Lord," not "Your Honour."421
416 Supra note 329 at 175. 417 Supra note 329 at 175. 418 Supra note 329 at 176. 419 Supra note 329 at 177. 420 Supra note 329 at 177. 421 Supra note 329 at 178. 119
With these formalities taken care of, George began testifying to "all he and Rue'd done in luring Burgundy out to the Richibucto Road and beating in his head, or, rather, what Rufus had done in slaying Burgundy and what Georgie had done in stealing cash and a car and burning a watch and a ring."422 George's attempts at placing all the blame for Burgundy's murder on Rufus proved to be a poor strategy as he was characterized as a cold-blooded, career criminal. Under questioning by Rufus's lawyer, George was asked whether he did "crime for a living" to which he responded that his only crimes were "penny-ante" because he had "a wife and a baby boy and a newborn baby girl."423
He explained that his criminal turn had been due to his brother noting that "[he] never stole anything in Fredericton until Rufus come home."424 His image as a dutiful father was soon undercut as details of his drunken revelry with a Saint John prostitute just hours after the murder came to light. Ultimately, George betrayed his own guilt in the assertion of his own version of the truth when he admittedly testified that in the matter of the crime before the court, "I did my share and Rue did his. I am as much to blame as my brother."425
If George's trial was an effort by an accused at putting forth their version of the truth, then Rufus's trial was an exercise in demonstrating how that same truth was constructed through the artifice of legal speech within a biased justice system. From the witness box, Rufus "satirically" (or, quite possibly, contemptuously) responds to questions posed by Alphaeus Boyd in a manner that acknowledges the intended script
Boyd was trying to play out while refusing to take any part therein. For example:
422 Supra note 329 at 177. 423 Supra note 329 at 178. 424 Supra note 329 at 178. 425 Supra note 329 at 178. 120
Boyd asked, "Why are you here, Rufus?" Rue explained: "Because my mama and papa made me—just like you." Boyd tried again. "Does George wear glasses reading?" Rue grinned. "I never seen him reading."426
At one point, Boyd makes a rather racist observation to Rufus that "[he] speak[s] almost perfect English [...]." Ruus's response is simple and simultaneously defiant in its
statement, "I do."427 Boyd's questioning continues with topics ranging from a prior romantic interest to buttons allegedly from Silver's court and even the objects of Rufus's ill-gotten gains. With his final question, Boyd sneeringly concludes an examination that garnered little information from an accused conscious that the dialogue he was providing would be the same that might place him at the end of a hangman's noose.
At the conclusion of the trial, Justice Chaud directs the jury in their final task.
Likening the trial to a "tragic drama which was unfurled... during the last four days,"
Chaud charges the jury with the task of rendering the truth from the constructed evidence and composed testimony before it.428 Expressing an absolute confidence towards the legal system in which he serves, Chaud asserts his belief that the jury's verdict will necessarily contain the exclusive and ultimate truth in this matter. With this final direction, the members deliberated and returned a verdict of guilty for both men.
Following the jury's delivery of its verdict and before passing sentence, Chaud inquired if either man had any final words. Alluding to his jailhouse conversion, George responded that he was "a converted and convicted Christian, sir."429 Rufus, however, had nothing to say and stood silent before the court. Frustrated at the obstinate posture of the recently convicted man standing before him, Chaud began the recitation of the
426 Supra note 329 at 183. 427 Supra note 329 at 183. 428 Supra note 329 at 185. 429 Supra note 329 at 186. 121
Hamiltons' sentence with a less-than-convincing assurance that, regardless of their race, justice had been done in this case:
It is a satisfaction to know that the poorest man, whether he belongs to the Caucasian race or not, may expect an able defence, which you lads have received. You are not of our race. That is no fault of yours. Whether it be a misfortune, it may be a matter of opinion. Your people were not brought here at your own instance or desire. Your ancestors were forced from their native homes, brought here to this land, no doubt against their own will. You are not to blame; you may be pitied for your colour and your race, but you and we have this satisfaction, that the Coloured man, the Negro, has precisely the same rights in a British, a Canadian, court to Justice that the purest white man could have.430
With that formality taken care of, Chaud went on to praise the laudable characteristic of self-restraint shown by the Canadian people in "leaving [both men] in the hands of the law in the regular administration of the law" as opposed to exacting their own form of vigilante justice through lynching.431 Instead, charged by his "duty as prescribed by that impartial law that smiles upon all British subjects" and after their "fair trials," Chaud passed sentence on both men ordering that they "be hanged on July 27, 1949, between midnight and noon, by the neck, until dead."432
While a traditional legal narrative with its determination of guilt or innocence, truth or fallacy, concludes with the verdict of the trier of fact, Clarke mines the case files of both George and Rufus Hamilton as well as the archives for equally relevant "facts" that lend context to not only the case but the interim period between the verdict and its execution.
43U%?ranote329atl86. 431 Supra note 329 at 186-187. The threat of lynching was not a foreign one to African-Canadian accused and condemned. In the case of Daniel Perry Sampson, two lynch letters were sent over the course of Sampson's second trial to the Crown and Judge respectively. Like the Hamiltons, however, Sampson's execution was ultimately carried out by the state. See supra note 379. 432 %?ra note 329 at 187. 122
On the morning of 27 July 1949, George and Rufus Hamilton were executed on gallows expertly constructed by a local carpenter, Absalom Tombs, and at the hands of the experienced executioner Mr. Arthur Ellis.433 With the streets crowded by mobs awaiting to "feel—for they could not witness—the imminent but closed-door execution of flesh-and-blood like themselves," George and Rufus were led to the execution chamber situated in a barn on the Fredericton prison grounds.434 The walk from their cell to the execution chamber afforded the crowd a brief moment of voyeuristic indulgence. Indeed, the event had amassed a "sandwich-and-pie-picknicking, beer-and-rum-guzzling hoi polloi outside the prison walls" which responded in "cheers" as well as "clapping and catcalls" at the sight of the condemned.435 Amidst this crowd were also six members of the Ku Klux Klan in full hooded dress. Perhaps inspired, a voice in the crowd called out
"Hang those black bastards! Or let us do it!" but little intruded on the Hamiltons' intended fate within the prison gates.436 After a brief explanation of the process that would end their lives, both men were unshackled and led to the thirteen steps they climbed to the top of the scaffold. Calmly, without hesitation, both men approached the hangman's noose. Indeed, there was "no point to feeling ill used or hard done by or disrespected: they could only pray agony would end in rapture. As soon as the sun'd first shone on them, it'd been shining on their graves. They knew it."437 After the final, methodical steps were taken by Ellis, the order to "Uncover" was given and a "[a] dozen policeman-witnesses doffed their caps ceremoniously" just as Ellis unceremoniously
433 Arthur Bartholomew English was known by the pseudonym of Arthur Ellis in his role as Canada's official hangman from 1912 until 1935. Subsequent Canadian executioners also adopted the pseudonym. Today, the Canadian Crime Writers of Canada present the annual Arthur Ellis Awards named after the executioner. 434 Supra note 329 at 205. 435 Supra note 329 at 205. 436 Swpra note 329 at 205. 437 Supra note 329 at 206. 123
"yanked the lever that sent the trembling Hamiltons crashing down into eternity."438 As
their lives flashed before them, outside the crowd experienced an orgasmic surge of
energy; "a collective spasm, a frisson, that made them gasp, quiver, vibrate in their
genitals when they heard the trap violently clap, clatter open. They felt emotionally alive
now, but spent."439 And just as the bodies fell precipitously they snapped to stop two-
feet short of the floor. Like weighted sunflowers and the ripe apples hanging in the trees,
both men were swaying from the gallows and so ended their lives.440 "Finis the 'Black
Acadian' Tragedy of 'George and Rue. ",4Al
3. George & Rue: A Literary Commentary on Contextual Adjudication
Within the narrative of George & Rue, Justice Chaud operates as much more than
the simplistic character representation of a judicial functionary. Like other characters in
the novel itself, Chaud is a pastiche of individual stories and anecdotes personified in a judicial amalgam of historically documented practices many African-Canadians
encountered throughout the Maritime Provinces. Garbed in traditional judicial robes and
ensconced on a dais within an artificially arcane courtroom, Chaud operates both within
and without his historic context as a means for criticism by Clarke of a Canadian legal
system that he believes has failed (and fails) to live up to its ideal in both form and
function. Chaud's strict adherence to the "clear facts" of the case ("that two men had
slugged, robbed, and murdered an innocent husband and father, and then outraged his
438 Supra note 329 at 207. 439 Supra note 329 at 207. 440 Clarke's assertion that the narrative of George and Rufus Hamilton describes their "judicial murder" allows such imagery to reference the song "Strange Fruit". Written by Abel Meeropol and popularized by Billie Holiday, the song speaks of the lynching of two Black men, Thomas Shipp and Abram Smith , in Marion, Indiana. 441 Supra note 329 at 207. 124 corpse, all in cold blood") produces a predictable guilty verdict and ultimately a death sentence for both men. In Chaud's refusal to acknowledge the necessarily racist experiences which frame the Hamilton's alleged crime, Clarke is challenging his reader to acknowledge the injustice of a death sentence for the Hamilton's as well as outcomes for other African-Canadians similarly charged and adjudged without such context.
In the wake of cases such as R. v. Lavallee,442 R. v. R.D.S.,443 and R. v. Gladue444 the judicial task of, as Devlin and Sherrard term it, "doing contextualism" has been placed before the nation's courts. Devlin and Sherrard go on to note that this would seem reasonable given the accepted constitutional values contained in ss. 15 and 27 of the
Charter, specific provisions within the Criminal Code that allow a judge to procure further relevant evidence445 or exercise restraint in the sentencing of individuals from historically marginalized communities,446 and the Supreme Court of Canada's acknowledgement that differential treatment under the rubric of "substantial equality" is preferable to that of "formal equality" as the latter has often been deficient or, worse, has perpetuated the inequalities experienced by these groups.447 The Ontario Court of
Appeal's decision in R. v. Hamilton, however, calls into question these progressive initiatives towards acknowledging the troubling legacy of historic discrimination and disadvantage within the Canadian legal system and suggests that judges who attempt to place an African-Canadian's conviction in context may, in the Court of Appeal's opinion, exceed their prescribed judicial role.
442 [1990] 1 S.C.R. 852. 443 [1997] 3 S.C.R. 484. 444 [1999] 1 S.C.R. 688. 445 Criminal Code, R.S.C. 1985, c. C-46, s. 723(3). 446 Ibid, at s. 718.2(e) 447 Richard F. Devlin & Matthew Sherrard, "The Big Chill?: Contextual Judgment after R. v. Hamilton and Mason" (2005) 28 Dal. L.J. 409. 125
Published in the same year as Hamilton was decided, Clarke's George & Rue appears to challenge the premise underlying the Ontario Court of Appeal's approach and, instead, advocates for the position put forth by the Supreme Court of Canada that "[t]here is more to a case than who did what to whom" and, moreover, that "questions of fact and law to be determined in any case do not arise in a vacuum."448 This becomes clear as
Clarke's fictional trial opens and the reader is first introduced to Justice Chaud. Through cultural and linguistic assimilation, Chaud is devoid of his own context as "an utterly
English Acadian" and feels compelled, as a perceived agent of the state, to further perpetuate the majority's hegemony.449 It would appear that one way he accomplishes this is through a facade of superficial neutrality that quickly reveals itself to be as dilapidated as the courthouse in which he presides and, likewise, barely covers a significant amount of racial bias lurking just below its surface. The analogy between
Chaud, his court, and the Canadian legal system drawn by Clarke is a not-so-subtle one indeed.
Clarke's use of Chaud necessarily accomplishes two related narrative ends.
Firstly, by highlighting Chaud's ignorance of the circumstances that led to George and
Rufus's appearance before the Court he ultimately contributes to an incomplete judicial narrative as it appears on the record. By juxtaposing the limited narrative contained within the courtroom to the story presented to his reader thus far, Clarke necessarily
"mocks, jars, displaces, or attacks [the] majoritarian tale or narrative"450 thereby creating a counternarrative and suggesting that another retelling of the Hamilton's case is not only
448 Supra note 443 at para. 41. 449 Supra note 329 at 174. 450 Richard Delgado, "Rodrigo's Final Chronicle: Cultural Power, The Law Reviews, and the Attack on Narrative Jurisprudence" 68 S. Cal. L. Rev. 545 at 552. 126
possible but necessary. Secondly, after being told of this necessary narrative that framed
their alleged crime, the reader inevitably questions any judgment that fails to
acknowledge this experience. Certainly, the "clear facts" are not exclusive. According to
Clarke, such an approach is clearly discriminatory.
Chaud's initial comments as George's trial begins exemplify the antithesis of
contexrualized adjudication and demonstrate how bias and prejudice have perpetuated
injustice towards African-Canadians within the Canadian legal system. Although Chaud
is presented as the epitome of judicial neutrality in his stated adherence to the "clear
facts" of the case, the reader soon discovers that the judge is not without his own judicial
failings. Indeed, in musings before the trial begins, Chaud arrives at the conclusion that the Hamiltons were both "killers" responsible for a "senseless" crime.451 In addition to this prejudgment, Chaud exposes his own racial bias towards the Hamiltons when he
declares that their colour, although not included in his enumerated "clear facts" had some bearing on his perception of the alleged crime being adjudicated before him: "[The
Hamiltons'] colour was not immaterial: it made a black crime even blacker."452 Not only was their race an aggravating factor to the crime itself but their heritage as African-
Canadians had rendered them guilty by association as Chaud viewed both men to be
"[t]he ugly results of an unhygienic paternity, they were a strain of tramps, laggards,
dullards, retards, with violent, cotton-picking hands that, if permitted, would level the
Parthenon to a sty."453 Amidst this bias, and in juxtaposition to the context Clarke proffers in his first section of the novel, the case against George and Rufus Hamilton provides Justice Chaud with several opportunities for contextual adjudication yet he
451 Supra note 329 at 174. 452 Supra note 329 at 174. 453 Supra note 329 at 175. 127 remains willfully blind to such context resulting in what Clarke views as not only incomplete but unjust verdicts. Certainly, Clarke would suggest, these men faced bias before the court and, moreover, they were not afforded an opportunity to provide context outside of Chaud's "clear facts". Given that their verdict was presided over by a jury,
Clarke challenges his reader to place themselves in the jury box and question not only the verdict but whether their own decision would have been different had alternate facts been presented and considered.
Although Chaud's neutrality is seemingly guarded by his reliance on the "clear facts" of the case, Clarke reveals that the practice is often distant from the ideal. Indeed, on several occasions he appeared to stray from his presumed position as a neutral arbiter and adopt almost a position of advocate. A notable example of this occurs as George is answering a question posed by Rufus's lawyer, Carl Waley. When asked if George
"[did] crime for a living," George responded that "he was doing penny-andy—penny- ante—crimes because I have a wife and a baby boy and a newborn baby girl, but I never stole anything in Fredericton until Rufus come home."454 Exceeding a basic fact-finding approach, Chaud's editorializing prejudges both George's response and, ultimately, his guilt. Chaud continues with a comment that is telling of his bias and prejudgment as he questions whether George was "despicably" using his wife and children as alibis. A more appropriate response, Clarke would seem to suggest, would have been for Chaud to have acknowledge the historically racist practices that restricted employment for African-
Canadian men and enquire as to how they might have possibly led the accused to extremes in order to provide for his family's basic necessities.
Supra note 329 at 178. 128
Clarke does not restrict his criticism of those within the legal system who fail to adopt a contextualized approach solely to members of the bench. Indeed, in the character of Alphaeus Boyd we see this extended to Crown Prosecutors. Although lacking in formal legal training, Clarke appears to identify a rather salient ethical requirement for
Crown Prosecutors "to seek justice, not merely to strive to obtain a conviction and to present to the court in a firm and fair manner evidence that the lawyer considers to be credible and relevant."455 Presented as a "bearded, bespectacled, sleek, and silk-suited" thirty-year-old, Boyd is every bit a lawyer yet ignorant of his ethical obligations. This essential connection between a contextual approach and ethics is observed as Boyd attempts to "philosophize" the case in his law office prior to the trial. Although Boyd acknowledges that African-Canadians have been the subject of discrimination, he remains ignorant to how this is manifested: situations that we, as the reader, have been made aware of in the first section of the novel. Regardless, for Boyd the question of race does not impact the crime alleged: "Are the Negroes oppressed? Yes. But they are not trampled in the streets or brutalized in their houses. Did the Hamiltons impiously procure
Silver's death? The charge is more than credible."456 Furthermore, Boyd does not view his task as that of proffering the truth to the court but rather "coax[ing] George's testimony into a death writ against Rufus—and against the star witness himself."457
Ultimately, Boyd's motivations are revealed not to be directed towards the truth but rather self-serving as he expressed concern that "his looming appointment as the deputy attorney-general of the Province of New Brunswick could be withdrawn if the jury was
455 Nova Scotia Barristers' Society, "Chapter 17: Lawyer as Prosecutor" at 17(b) in Legal Ethics Handbook (Halifax: NSBS, 2007). 456 Supra note 329 at 176. 457 Supra note 329 at 176. 129 not persuaded by the evidence and his arguments to bring mortal convictions against the boys."458
Clarke is astute in noting what he considers to be a failing on Boyd's part. As a
Crown Prosecutor, Boyd bore an ethical duty not unfamiliar to Crown Prosecutors today not to blindly procure convictions but, as officers of the Court and Crown, to put forward the truth; even if that means acquittal.459 Clarke would appear to suggest that an aspect of this duty would also include a duty to provide information on the historical discrimination and racist legacy suffered by an accused so as to better understand their circumstances. In Boyd's case, he was complicit in the injustice done towards the
Hamiltons as he was aware of the racism experienced by African-Canadians but he failed to bring this forward. Additionally, by refusing to explore this aspect of the case, Boyd remained willfully blind to the extent to which racism affected not only the Hamiltons but other African-Canadians.
For Clarke, that George and Rufus Hamilton suffered discrimination within the
Canadian legal system of their day was without question: the trial transcript bears this out with racist utterances by both the presiding judge and Crown. His recounting of the trial within George & Rue, however, is more than a merely fictionalized documenting of racism, but also serves as a cautionary tale for those who blindly adhere to a concept of formal equality. Specifically, Justice Chaud is presented as a jurist incapable of bringing an impartial mind to the case before him. Rightfully, he is disgusted with the alleged crime both George and Rufus are accused of, however, the fact that both men are black only "made a black crime even blacker." While Chaud allowed the Hamiltons' race to
S«pranote329atl76. Supra note 455. 130 color his view of their crime, he refused to allow in their race to inform the case before him: "that the Hamiltons were Coloured didn't alter the clear facts that two men had slugged, robbed, and murdered an innocent husband and father, and then it raged his corpse, all in cold blood."460 Accordingly, we are presented with Chaud's philosophy that governed the trial and secured convictions for both men.
George and Rue serves as an important rhetorical exercise in the case for what
Clarke views as an antithetical model of contextual adjudication. Such a reading would not be amiss for those in his audience, both lawyers and judges alike, who are seized with the task of "doing contextualism." Indeed, this point is made when we examine the
Ontario Court of Appeal's decision ini?. v. Hamilton through the lens of Clarke's novel.
4. A Fictional Frame for Contextual Adjudication: An Analysis of the Ontario Court of Appeal's Decision in R. v. Hamilton Through the Lens of George Elliott Clarke's George & Rue a. Introduction
The task of, as Devlin and Sherrard term it, "doing contextualism" has received significant institutional support through the efforts of the Canadian Judicial Council and its attempts at "provid[ing] opportunities for [...] judges in their courts to attend social context programs in at least the areas of gender equity, racial equity, and Aboriginal justice."461 Since this declaration, cases such as the notable R. v. R.D.S. have established the requirement in common law for judges to consider important issues surrounding social context. It should be noted that while judges have generally acknowledged the need for social context, the mechanism by which they go about using this judicial tool has
%?ra note 329 at 174. Canadian Judicial Council Annual Report (1993-1994) at 26. 131 been the subject of significant debate.462 Most recently, in the Ontario Court of Appeal's decision of R. v. Hamilton a unanimous court stated its agreement with the principle that social context is an important consideration for judges only to then effectively render social context from consideration because those judges who attempt to be so engaged risk exceeding their judicial mandate, the potential stigma of judicial bias, or, at the very least, erring in their judicial role because they have failed to remain consistent with the sentencing principles set out in the Criminal Code.463 The Ontario Court of Appeal's position has subsequently been criticized for errors in the court's comprehension of how contextual adjudication serves the stated sentencing provisions as well as a rather troubling and limiting view surrounding what groups merit the consideration of context before Canadian courts. Effectively, as Devlin and Sherrard suggest, the decision in
Hamilton creates a chilling effect for further application of contextualized adjudication.464 It is, I suggest, the contemporary judicial manifestation of exactly what
Clarke argues against within George & Rue and, as such, serves as an interesting site for analysis.
b. Facts
Given that a significant aspect of the Ontario Court of Appeal's decision concerned determining what information is germane to a trial judge's sentencing analysis,
462 Supra note 447 at 413-414. 463 Although the court ruled against a finding of bias in this case, the allegation was nonetheless levied. For a discussion on balancing the stigma of bias allegations with a desired practice of social context adjudication see Richard F. Devlin and Dianne Pothier, "Redressing the Imbalances: Rethinking the Judicial Role After R. v. R.D.S" (1999) 31 Ottawa L.Rev. 1. 464 Devlin and Sherrard note this chilling effect in the title of their paper cited in this chapter. Supra note 447. 132 the factual background provided by Doherty, writing for the unanimous court, is particularly telling.
Ms. Hamilton, a Toronto resident and African-Canadian, and Ms. Mason, a longtime Canadian resident of Jamaican citizenship, came under suspicion by Canadian customs officials upon their return from Jamaica in November 2000 and on 14 May 2001 respectively. Subsequent to detention at Pearson International Airport and later at a local hospital, both women passed several pellets of cocaine they had ingested prior to leaving
Jamaica: Ms. Hamilton produced 93 pellets containing 349g of cocaine and Ms. Mason produced 83 pellets containing 489g of cocaine. At the time of the offense, Ms. Hamilton was a 26-year-old single mother of three children. Raised by her mother and grandmother, she left school in grade nine on becoming pregnant with her first child.
Abused by the father of her first two children, neither he nor the father of her third child provided any assistance to Ms. Hamilton or her children. Due to her limited education,
Ms. Hamilton had few employable skills and was unemployed at the time of the presentence report, as her ability to work was hindered by her child care obligations. Ms.
Hamilton was a courier for compensation but had no financial interest in the distribution of the cocaine she carried. Ms. Mason was a Toronto resident from Jamaica who did not possess Canadian citizenship. At the time of the offense, Ms. Mason was a 31-year-old single mother of two. Raised in a "strict, but happy, environment free of emotional and physical difficulties," Ms. Mason completed a high school education. The fathers of Ms.
Mason's two children provided neither her nor her children with any support. At the time of the presentence report, Ms. Mason worked at a fast food restaurant for minimum wage and lived in government subsidized housing. Ms. Mason did not drink, use drugs, or 133 have a prior criminal record, she was good with children and was at actively involved in her church as a choir leader. Both respondents elected trial by judge and jury but on the day they were to proceed both pled guilty. Although the charges were unrelated, because both respondents relied on the same expert evidence the charges were heard at a joint sentencing hearing.
At the conclusion of the trial, Ontario Superior Court judge Casey Hill embarked on a series of extensive sentencing proceedings over the course of three months. In addition to expert witnesses in submissions by both counsel, Justice Hill brought approximately 1000 pages of social science and statistical information to the attention of crown and defense counsel at various points over the course of the sentencing proceedings. Justice Hill rendered a lengthy, detailed decision with conditional sentences of 20 months for Ms. Hamilton and 24 months less a day for Ms. Mason. The Crown appealed both sentences arguing that not only the manner in which the sentences were assessed and rendered was flawed, but that the sentence and sentences themselves did not fit the crimes to which both women had pled guilty. Ultimately, the Court of Appeal agreed with the majority of the Crown's points on appeal, however, given that both women had served over half of their conditional sentences, during which they had complied with all conditions, and that had they received custodial sentences they would most likely have been released, the Court of Appeal chose not to incarcerate either woman.
c. Judicial storytelling
At its heart, the case of R. v. Hamilton is about the practice of judicial storytelling.
A survey of the Ontario Court of Appeal's decision, with unanimous reasons written by 134
Justice David H. Doherty, reveals that what was at issue was not simply the sentence rendered by trial judge Casey Hill but the manner in which he constructed and expressed his reasons for judgment. Specifically, this case was a critique of Hill's narratology: what story he chose to tell and the manner in which he told it. This is perhaps not so surprising given the noted jurist Benjamin Cardozo's belief that the success of a court's decision is measured not only in the correctness of its legal reasoning but also in the manner in which it is expressed.465 To illustrate the Ontario Court of Appeal's concern for narrative in the instant case we need only look to the opening paragraph of the decision. Therein, Doherty acknowledges that the "difficult task" facing a trial judge is often exacerbated in the circumstances where, as in this case, "otherwise decent, law- abiding persons commit very serious crimes in circumstances that justifiably attract understanding and empathy."466 However difficult, the Court of Appeal nonetheless expressed its confidence in Hill's ability to tackle such a task given his laudable characteristics of experience, "scrupulous fairness," and "a judicial ear attuned to the realities of the lives of persons like the respondents."467 Where Hill erred, according to the Court of Appeal, was in straying from what it believed to be the "narrow focus" of the sentencing process and drafting a decision that failed to properly reflect the offenders, their offences, or the purposes of the sentencing process itself. This was done, in Justice
Doherty's opinion, by:
[e]xpand[ing] the sentencing proceedings to include broad societal issues that were not raised by the parties. A proceeding that was intended to determine fit sentences for two specific offenders who committed two specific crimes became an inquiry by the trial judge into much broader and more complex issues. In conducting this inquiry, the trial judge stepped outside of the proper role of a
465 Supra note 39 at 6,36. 466 R. v. Hamilton (2004), 2004 CanLII 5549 at para. 1 (Ont. C.A.)(CanLII). 461 Ibid, at para. 138. 135
judge on sentencing and ultimately imposed sentences that were inconsistent with statutory principles of sentencing and binding authorities from this court.468
Before either court embarked on the judicial reasons in their respective decisions,
impugned or otherwise, they manifested their differing approaches to narratology in their
respective statements of fact relevant to the case.469
At the outset of his reasons, Justice Hill acknowledged the severity of the
circumstances that brought both women before him when he noted that "Marsha
Hamilton and Donna Mason risked their lives and their liberty by traveling to Canada
after swallowing pellets of cocaine in Jamaica."470 The gravity of their actions was
further punctuated by the fact that "Ms. Hamilton nearly died from cocaine leaking into
her bloodstream."471 Given that both women pleaded guilty, the only question left was to
determine a just sentence and, for Justice Hill, this demanded not only an understanding
of the crime itself but also why two "black women and single mothers of three" would
become involved in such a serious crime.472 After describing the events at Pearson
International Airport that eventually resulted in the arrest of both women, Justice Hill's
factual analysis continues to include further discussion of: cocaine, cocaine purity, drug
couriers, steps taken to stem the tide of illegal cocaine smuggling, the incarceration of
women and Black women in Canada, "the face of drug importation in Brampton," and the personal circumstances of both Hamilton and Mason pertaining to their family situation,
education, employment, and the absence of prior offences amongst other details. After
468 Supra note 466 at para. 3. 469 It should be noted that Hamilton did not proceed to the Supreme Court of Canada and, as such, rests as a confirmed decision by the Ontario Court of Appeal binding on courts within that province and bearing significant persuasive weight for courts across the county. 470 R. v. Hamilton (2003), 2003 CanLII 2862 at para. 1 (Ont. Sup. Ct. J.). 471 Ibid. See also Joshua Marston, Maria Full of Grace (2004). I wish to thank Prof. Richard Devlin for providing me with this cinematic reference that is strikingly similar to aspects of the Hamilton case. 472 Supra note 470 at para. 2. 136 almost thirty pages of information, Justice Hill then commenced his analysis of the crimes which itself occupied a further 105 paragraphs. Only after this did he render a sentence.
As Weisberg notes, "it is of course impossible to restate any fact situation without adding subjective color to the pristine original reality..."473 While I do not wish to suggest that Justice Hill's account is necessarily authoritative, it is interesting to note
Justice Doherty's editorial choices and how they potentially affect the reader's perception of Hamilton and Mason. Furthermore, while I acknowledge that a Court of Appeal is not the initial trier of fact and thus has a significantly different relationship with the restatement and assessment of fact, the issue under appeal begs a closer examination of the facts Justice Doherty felt to be at issue.474 Unlike the trial decisions, Justice
Doherty's reasons do not include an acknowledgement of the risk taken by both women.
Instead, Hamilton and Mason are defined by the first line of Doherty's overview: they are cocaine smugglers who were caught in the act. Justice Doherty then goes on to include many of the same facts specifically pertaining to Hamilton and Mason and their crime found in Hill's earlier decision. Where the decisions differ, however, is that Justice
Doherty concludes his factual considerations after his brief survey of both women and the events that had preceded their arrest. Unlike Justice Hill, Justice Doherty takes issue with the additional information considered at the trial level to put both the women and their
473 Supra note 57 at 44. 474 The Court of Appeal opined that, given the facts, it would have been more appropriate for Hamilton and Mason to receive custodial sentences of twenty months and two years less a day respectively. Although the Court of Appeal was careful to note that the sentences both women received were neither adequate nor appropriate it chose not to impose further incarceration because it acknowledged the compliance of both women throughout their conditional sentences, the potential for serious hardship in both instances if incarceration was ordered on appeal, and the likelihood that both women "would have been released from custody on parole many months ago, and this sad episode in their lives would have been a bad memory by now." Supra note 466 at para. 165. 137
crimes in context. In his opinion, such information is superfluous and detracts from the
specific focus intended for a sentencing hearing.
Akin to Chaud's affinity for the "clear facts" of a case, Justice Doherty's ruling
effectively restricts what it will consider to a basic narrative of the type that Justice
McLachlin (as she then was) warned against: the "who did what to whom."475 Through an assurance of sterile facts that are seemingly the only ones relevant to the offence and offender, the Ontario Court of Appeal facilitates a process of factual editorializing that masks context. Although the facts themselves are just as true as those that appear in
Justice Hill's decision, without the same degree of context the Court of Appeal supplies a less than complete narrative and, I would respectfully suggest, Hamilton and Mason receive less than just verdicts.
When assessing the narrative approaches of the fictitious and (f)actual actors in these cases, it is significant to note that both Justice Hill and Clarke take a more protracted approach towards their respective narratives. While Clarke's Justice Chaud and Justice Doherty confine their reasoning to what seems to be the case itself and the related who, what, when, where, why, and how of legal expository, Clarke, as narrator, and Justice Hill push their audience to recognize that if legal narrative is to be just then it must be informed by more than the sometimes limited and constructed narratives that members of marginalized communities have had written for them in the nation's courtrooms. In the same manner as Clarke sets out the events which frame George and
Rufus's deplorable act, so, too, does Justice Hell set out a contextual map that leads to a criminal destination. Unlike Doherty and Chaud's affinity for the "clear facts", Hill and
Clarke are concerned with provoking an explanation for how issues of poverty,
475 Supra note 443 at 41. 138 diminished educational opportunities, inaccessibility to fair-paying employment, and fractured family units with patterns of neglect often frame the lives of many African-
Canadian accused. Viewing both narratives, one judicial and the other literary, we begin to see parallels. Like George and Rufus, Hamilton and Mason lived in families where little support was provided for their own needs or those of their children. Related thereto, just as George and Rufus worked in racially prescribed jobs on the farm and in the fields as well as in kitchens peeling potatoes and washing dishes so, too, were patterns underemployment in low-paying positions noted for Hamilton and Mason as well as other
African-Canadians on a larger scale by Hill. Ultimately, these forces and others lead both the Hamilton brothers as well as Hamilton and Mason to what appears to be an almost inevitable conclusion. While it is unlikely that Clarke composed either his novel or collection of poems with the intent of referencing of Hamilton or Mason specifically, it would not be unreasonable to suggest that the retelling of his cousins' tale was meant to speak to a larger African-Canadian experience of which Hamilton and Mason were certainly a part. In a similar fashion, Hill is attempting to evaluate the two women before his court in light of experiences common to several others from their community. While neither Clarke nor Hill excuse the crime, it is clear that both construct their respective narratives so as to more fully gauge the culpability of the two accused in either case.
d. Restraint
Justice Doherty's attempt at controlling the judicial narrative was not limited to his instructions on information introduced by counsel or, even worse in his opinion, a trial judge but also extended to the lens through which the sentences of offenders such as
Hamilton and Mason might be properly assessed. Although the fictional Chaud did not 139
have the direction of statutory provisions such as the Criminal Code's s. 718.2(e), his
assertion "[t]hat the Hamilton's were Coloured didn't alter the clear facts [of the crime]"
echoes Justice Doherty's conclusion that because, in his opinion, both women did not fall under the Criminal Code's restraint provision that questions surrounding both their race
and gender were irrelevant when assessing their sentence.476 By effectively excluding race and gender as factors, Justice Doherty, like the fictional Justice Chaud before him,
concludes that the seriousness of an offence cannot be "deprecate[d]" by the "ethnic or cultural background of the offender."477 Whether sentencing offenders for cocaine smuggling or murder, both the Ontario Court of Appeal and Clarke's fictional New
Brunswick Court of Queen's Bench chose to remain (willfully) blind to how questions of race impact considerations relevant to the sentencing of African-Canadians. Indeed, on closer examination, it becomes clear that the Ontario Court of Appeal decision and
Clarke's novel have much to say about each other.
Professing a concern for language similar to that of Justice Chaud, Justice
Doherty achieves his narrative ends by a combination of rhetorical gymnastics, misunderstanding, and misinterpretation.478 Acknowledging that principles other than proportionality should guide the sentencing process, Doherty turns his analysis to the restraint principle set out in the Criminal Code as follows:
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
476 See supra note 466 at 174-175. 477 Citing the court in Wells, Devlin and Sherrard note that the Criminal Code's s. 718.2(e) is not intended to produce a different result but rather suggest a different methodology for sentencing offenders who fall under the provision. See supra note 441 at 423-424. 478 Supra note 441 at 421-422. 140
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.479
Justice Doherty begins his analysis of this provision with an all-embracing inclusiveness reminiscent of Justice Chaud's comments to George and Rufus Hamilton before their sentencing. Assuring both men that they will receive a just sentence, Justice
Chaud states:
You are not to blame; you may be pitied for your colour and your race, but you and we have this satisfaction, that the Coloured man, the Negro, has precisely the same rights in a British, a Canadian, court to Justice that the purest white man could have.480
Although not employing similar racist undertones, Justice Doherty, like Justice Chaud, assured both offenders before him that they will be treated equally before the law when he asserts that "[t]here can be no doubt that [the restraint principle] applies to all offenders."481 Just one sentence later, however, he begins his attempt at distinguishing the applicability of the provision with his conclusion that:
The restraint principle takes on added importance because the historical mistreatment of aboriginals by the criminal justice system as reflected in the highly disproportionate number of aboriginals sentenced to imprisonment, taken with aboriginal cultural views as to the purpose of punishment, can combine to make imprisonment ineffective in achieving the purpose or objectives of sentencing where the offender is an aboriginal.482
As the subject of criticism, Justice Doherty's practice of interpreting s. 718.2(e) based on historical and cultural criteria presents some interesting points. These same criteria are explored by Clarke both within his fictional, and seemingly egalitarian, courtroom and throughout his novel.
Supra note 445 at s. 178.2(d)-(e). 5,wpranote329atl86. Supra note 466 at para. 98. Supra note 466 at para. 95. 141
Justice Doherty attempts to distinguish the applicability of the restraint principle as between Aboriginal-Canadians and African-Canadians based on what he determines to be two distinct experiential criteria. The first of these is "the historic mistreatment of aboriginals by the criminal justice system.. ."483 While Aboriginal people within Canada have certainly suffered such discrimination within the legal system, the intent of the provision was not so focused as to make the provision almost exclusive. As Devlin and
Sherrard note, Parliament's intent was to "acknowledge social, political and economic inequalities" that manifested the "historic and continued marginalization of Aboriginal people in Canadian society."484 While Justice Doherty is careful to de-emphasize questions surrounding race due to their emergence from Justice Hill and not from Crown or defence counsel, his hypothetical postulation asking "if the historical mistreatment and cultural views of African-Canadians could be demonstrated then the restraint principle might apply is troubling.
Justice Doherty's identification of the "historic mistreatment of aboriginals" manifested in the "highly disproportionate number of aboriginals sentenced to imprisonment" occurs in the face of social science data compiled by Justice Hill that demonstrates comparable trends within the African Canadian community.485 Indeed, just as George served his time at Dorchester Penitentiary amongst a disproportionately larger population of African-Canadians similar conditions present themselves today in contemporary Canadian institutions.486 Justice Doherty however chose not to consider
483 Supra note 466 at para. 98. 484 Supra note 441 at 423[emphasis in original]. 485 Supra note 470 at paras. 70-101. 486 Clayton J. Mosher, "Minorities and Misdemeanors the treatment of black public order offenders in Ontario's criminal justice system - 1890 -1930" (1996) 38:4 Can J. Crim. 413. See Kent W. Roach, "Race and Sentencing" (2003) 47 Crim. L.Q. 233. 142 such social science data because, in his opinion, the "veritable blizzard of raw statistical information" could potentially result in "inaccurate fact-finding."487 Although Justice
Doherty acknowledged that disproportionate incarceration is evidence of historic mistreatment for Aboriginal people, he was unwilling to acknowledge a similar pattern for African-Canadian women in this case: "it is not clear to me what connection, if any, there is between the number of black women in the penitentiary in the relevance, if any, of race or gender to sentencing principles as applied to the crime of cocaine importation."488 Justice Doherty's explanation for his position was that "it is difficult to know what to make of the statistical data without assistance of evidence from a properly qualified witness."489
Justice Doherty's distinguishing on the basis of history unfortunately prioritizes the racialized experiences of one group against another when the provision at issue is not exclusionary but rather, as Devlin and Sherrard state, inclusive.490 Additionally, focusing on the historic aspect of racial discrimination instead of the "historic and continued" marginalization of African-Canadians, Justice Doherty fails to recognize the historic basis of contemporary discrimination. Within his novel, Clarke challenges his reader to acknowledge the quasi-historic elements of the crime profiled as well as the reality that similar events confront African-Canadians today. Indeed, like George's questionable search by police in Montreal, other African-Canadians have been similar targets of racially focused actions by authorities.491 Clarke seems to be suggesting to his reader
Supra note 466 at para. 75. 488 Supra note 466 at para. 77. 489 Supra note 466 at para. 76. 490 Supra note 441 at 423. 491 See In the Matter of a Complaint Under the Human Rights Act by Kirk Johnson against the Halifax Regional Police Service and/or Constable Michael Stanford (22 December 2003), 2003 N.S H.R.B. 143
that the contemporary discrimination experienced by African-Canadians cannot be
understood without acknowledging its historic basis.
Justice Doherty's second criterion opens his decision up to the same criticism that
he leveled at the Justice Hill. As Devlin and Sherrard note, Justice Doherty provides "no
authority for the proposition that the principle of restraint is justified solely on the basis
of cultural 'ineffectiveness' and not 'historic mistreatment'."492 The lone piece of
information he provides is the following footnote:
In R. v. Spencer, heard with these appeals, there was evidence from a family counselor employed by the Jamaican Canadian Association. She testified that the black community was a diverse group with a broad range of cultures and beliefs. She also testified that to her knowledge, the Jamaican community did not have a different view about sentencing and personal responsibility for criminal conduct than did other Canadians.493
Like his criticism of Justice Hill, Justice Doherty is approaching raw data without the benefit of some interpretive expert to more completely flesh out the nuances. While
Justice Doherty's expression of the family counselor's information is accurate there is a unique point he fails to recognize. Clarke, in his role as a noted African-Canadian
scholar, recognizes a "bias towards law and order" amongst members of the African-
Canadian community who possess a Caribbean heritage.494 Thus, while the Caribbean community may not express a "different view about sentencing and personal responsibility for criminal conduct than did other Canadians" this is not to suggest that their views are emblematic of all members of the "diverse" African-Canadian community nor that they have not been subject to historic and continued marginalization that affects
http://www.gov.ns.ca/lmmanrights/publications/KJdecisioii.pdf, See also R. v. Brown, 2003 CanLII 52142 (ONC.A.)(CanLII). 492 Supra note 441 at 424. 493 Supra note 466 at footnote 5. 494 Supra note 330 at 68. 144 their cultural response to the criminal justice system.495 Surely it would be erroneous to suggest that one First Nation's cultural viewpoint on the criminal justice system necessarily speaks for another and should preclude other First Nations from falling under s. 718.2(e) if they differ. The same should certainly be the case for groups within the
African-Canadian community.
Justice Doherty's examination of the differential cultural viewpoints within the
African-Canadian community seems to suggest that because African-Canadians from the
Caribbean express a cultural viewpoint on the criminal justice system that they have not been subject to racial marginalization. Clarke demonstrates the error in such approach by setting out a similar situation within his novel when speaking of Africadians living in
Fredericton, New Brunswick as compared with those in Three Mile Plains, Nova Scotia.
In Fredericton, the town with "no Coloured slum," George mistakenly thought he would escape the racism of his home province. George, however, was not alone in this belief as the residents of Fredericton's Barker's Point, "where most Coloureds lived," were seemingly content in their interaction with white, Fredericton society. Indeed, they even assisted the police in their investigation of Nacre Pearly Burgundy's death. What Clarke makes clear, however, is the biased approach of the police towards Africadians in their stereotypical approach to crime and the licentious manner in which they conducted their investigation throughout the community was as present in Fredericton as it was in
Halifax:
The police suspected a gang. Their maniacal manhunt triggered, as usual, raiding of the Negro quarter - 'camp'—of Barker's Point. Mounties had to check every outhouse, every sty, and looked ready to kill. There was vandalism as they entered tubercular kitchens and crippled bedrooms; the threat of vigilantism where they found ingenious stills. Carrying Tommy guns, they itched to spray the
495 Supra note 330 at 68. 145
shantytown with bullets. Quizzical cops handcuffed every black man or boy for the routine third degree.. .496
Certainly, Clarke would have his reader recognize that this did not negate the discrimination these Africadians experienced and that it was still quite real regardless of the community's viewpoint.
In his assessment of the various sentencing considerations available to a trial judge, Doherty notes that the restraint principle, a part of the 1996 Criminal Code amendments, "must be engaged when determining the appropriate sentence [for an offender]."497 Although he asserts that, "[t]here can be no doubt that s. 718.2(e) applies to all offenders," Doherty attempts to distinguish its application by focusing on language within the provision that directs "particular attention to the circumstances of aboriginal offenders."498 This, he suggests, is because "the historical mistreatment of aboriginals by the criminal justice system as reflected in the highly disproportionate number of aboriginals sentenced to imprisonment, taken with aboriginal cultural views as to the purpose, can combine to make the imprisonment ineffective in achieving the purpose or objectives of sentencing where the offender is aboriginal."499
Justice Doherty's focus on the ineffectiveness of imprisonment for aboriginal offenders appears to miss the original intent of the provision, ignore his own comments on anti-Black racism within Canada, and obscure how such a provision might apply to
African-Canadians. As Devlin and Sherrard note, s. 718.2(e) arose out of a desire by
Parliament to acknowledge "the historic and continued marginalization of Aboriginal people in Canadian society" as manifested "in terms of their interaction with the
496 Supra note 329 at 156. 497 Supra note 466 at para. 95. 498 Supra note 445 at s. 718.2(e). 499 Supra note 466 at para. 98. 146
Canadian judicial system."500 Certainly, Justice Doherty would agree that such a legacy
exists not only for aboriginals but also for African-Canadians given his comments in R. v.
Parks:
[rjacism, and in particular, anti-black racism, is a part of our community's psyche. A significant segment of our community holds overtly racist views. A much larger segment subconsciously operates on the basis of negative racial stereotypes. Furthermore, our institutions, including the criminal justice system, reflect and perpetuate those negative stereotypes. These elements combine to infect our society as a whole with the evil of racism. Blacks are among the primary victims of this evil.501
Indeed, Clarke notes this legacy when describing Rufus's sentence within Dorchester
Penitentiary. When confronting this issue of "the historic and continued marginalization" of African-Canadians, Clarke challenges his reader to draw a line on the historical record that connects the significant over-representation of African-Canadians in the penitentiary system during the 1940's with the present where such problems still persist. Hill does this in a much more explicit manner through the production of statistics
on Black crime and incarceration rates in Canada. The question it would seem that both
Clarke and Hill are trying to answer is whether such a trend in the African-Canadian
community is merely coincidental or, rather, whether patterns of discrimination inflicted upon this community prompt members to engage in criminal activity under harsher
spotlights of the legal system than that experienced by others. Equally important, both
Clarke and Hill appear to be in agreement that such a question should be explored further during the sentencing of African-Canadians.
e. Voicing
500 Supra note 441 at 423. 501R. v.Parks, (1993), 84 C.C.C. (3d) 353 para. 49 (Ont. C.A.) (leave to appeal refused [1994] l.S.C.R. x). 147
The concern over narrative expressed by the Ontario Court of Appeal in Hamilton extended beyond the story itself to the storyteller[s] charged with its composition and expression as well as the information they were permitted to use. As a legal narrative,
Justice Doherty's comments regarding Justice Hill's decision suggest that the trial judge is the primary author of a narrowly prescribed judicial text when it comes to sentencing.
As Devlin and Sherrard note, however, various statutory principles as well as case law from the Supreme Court of Canada call for a broader narrative as well as one wherein other actors play a much more proactive role in composing a more complete narrative in cases involving individuals from historically marginalized communities. The narrative roles of both judges and lawyers will be discussed in turn in light of both the Ontario
Court of Appeal's decision in Hamilton and the conduct of the judge and lawyers in the fictional trial of George and Rufus Hamilton
Although given relatively short shrift by the Ontario Court of Appeal in its decision, Justice Doherty's discussion of the Criminal Code's s. 723(3) is nonetheless significant in delineating the ability for a sentencing judge to bring forth relevant contextual information as well as implied responsibilities on other officers of the court.
The section itself is set out in the Code as follows:
The court may, on its own motion, after hearing argument from the prosecutor and the offender, require the production of evidence that would assist it in determining the appropriate sentence.502
Doherty begins his discussion by asserting that "[n]o one suggests that a trial judge is obliged to remain passive during the sentencing phase of the criminal
Supra note 445 at 723(3). 148
process."503 In spite of seemingly opening the door for sentencing judges to obtain
contextual information relevant to sentencing, Doherty quickly retreats with the proviso
that, "[recognition that a trial judge can go beyond the issues of evidence produced by
the parties on sentencing where necessary to ensure the imposition of a fit sentence does
not mean that the trial judge's power is without limits or that it will be routinely
exercised." Doherty goes on to suggest that "the trial judge limit the scope of his or her
intervention into the role traditionally left to counsel."504 Devlin and Sherrard note that s.
723(3) has been the subject of relatively little judicial consideration from which
agreement has surfaced that the section itself provides that:
- It is a legitimate mechanism to help a judge fulfill the responsibility of controlling the sentencing process; - Appeal courts should show some deference to trial judges who believe they are required to invoke this provision; It is incumbent upon the trial judge to be precise in communicating with counsel as to what information might be relevant, so that counsel can meaningfully respond; - It cannot be expanded to become "in pith and substance a request for an inquiry"; - It does not grant an open-ended authority to require the production of any report, evidence or person—there must be some logical nexus or relevance between what is being ordered to be produced and the matter under consideration; [and] - It does not authorize trial judges to seek potentially unreasonable information.505
Certainly, as Devlin and Sherrard suggest, Justice Hill was not treading on the guidelines
set out thus far. If anything, he was "simply respecting his parliamentary-imposed mandate to ensure that he was 'determining the appropriate sentence'."506
Supra note 466 at para. 66. Supra note 466 at para. 70. Supra note 441 at 420-421. Supra note 441 at 421. 149
The significance of this provision emerges from not only the ability of a sentencing judge to elicit material relevant to sentencing but even more basically in the very necessity that this occur at all. As set out in the provision, a judge is only able to make such a motion after argument by the Crown and offender occurs. It would be logical to assume that if either side had proffered the desired information that further inquiry would not be required. Indeed, this is something of an obvious point but it merits further probing in light of not only this case but those of other individuals from historically marginalized groups where the restraint principle set out in s. 718(2)(e) may be applied.507 As Doherty notes, "there had been no suggestion by any party to the proceedings that race or gender had any relevance to the determination of fit sentences for the respondents.. ."508 It was only after Hill invited submissions from counsel on the admissibility of 700 pages of material he had derived from his own personal research that
Crown counsel acknowledged that "a racial issue" was being "introduced" into the proceedings.509 According to Doherty, Hill then went on to clarify that "he was not suggesting that the respondents' arrests or prosecutions were racially motivated or otherwise tainted by racial or gender bias."510 Instead, he was concerned of the potential for a "disproportionate effect on a disadvantaged group, namely poor black single mothers" and decided that examining such a "contextual perspective" was "obliged" on
The positive duty on a sentencing judge to elicit information if counsel are not forthcoming is set out by the Supreme Court of Canada in R. v. Wells. The court qualifies a sentencing judge's actions in this area by stating that such an inquiry must be "practical," "limited to 'appropriate circumstance,'" and not "transform the role of the sentencing judge into a board of inquiry." R. v. Wells, 2000 SCC 10 at para. 54-55. 508 Supra note 466 at para. 53 [emphasis added]. 509 Supra note 466 at para. 54. 510 Supra note 466 at para. 56. 150 his part.511 It is revelatory that following this exchange between Hill and Crown counsel that the Crown commented as follows:
I'm not suggesting that it is not appropriate for a court to consider that, it's just that I didn't direct my mind to it and it may significantly add to the amount of time I require to re-focus my attention on that issue...512
Although it is laudable that Crown counsel in this case would acknowledge that they had not considered the question of race as being a significant concern, it is also revealing that such a consideration failed to take place.
We observe a similar failure to consider a question of race in Clarke's novel also in the person of the Crown Prosecutor at bar. Like the Crown Prosecutor in Hamilton,
Alphaeus Boyd acknowledges that race and racism generally are indeed factors that he could consider but that he did not believe them to be relevant to the case he was scheduled to prosecute:
Are the Negroes oppressed? Yes. But they are not trampled in the streets or brutalized in their homes. Did the Hamiltons impiously procure Silver's death? The Charge is more than credible.513
As in Hamilton, opportunities for counsel to raise and explore issues of context present themselves throughout the trials in Clarke's novel however neither lawyer chooses to engage. One such instance almost implores the reader to consider the question of race. Under questioning by Rufus' lawyer, Carl Waley, George is asked to explain what is responsible for the "fresh details in [his] story" that have come to light. George's response is simple, "The truth."514 Waley continues to probe and questions the accused as to the events which immediately preceded the murder:
511 Supra note 466 at para. 55. 512 Supra note 466 at para. 57. 513 Supra note 329 at 176. 514 Supra note 329 at 180. 151
You claim that you told your brother to pick up the hammer you so coincidentally dropped because you were afraid Silver would see it. Now, why should Silver have been bothered to see you, dressed like a carpenter, with a hammer in you care?515
George's response illustrates a reality for many African-Canadian men, then and now:
We're Coloured boys, and Silver's with us on a lonely road with nobody else around and he sees one of us with a hammer: Now, what would you think?516
Prodding the point towards its logical conclusion, Waley retorts "Isn't that prejudiced, a prejudiced view?" to which George against responds truthfully "Depends on your
colour."517
At this point in the trial, Clarke has highlighted the issue of race for both his
characters and his reader. Accordingly, when Waley chooses not to pursue the point
further but rather leave it to Justice Chaud we are left with the same situation as in
Hamilton with one significant difference: Justice Hall chose to examine race further while Judge Chaud did not. For Clarke, truth is often an elusive presence within
Canadian courtrooms when dealing with questions of race.
/ Sentencing Principles: Proportionality and Parity
While the Ontario Court of Appeal may have taken issue with the manner in which Justice Hill composed his judicial narrative, its further analysis of the framework employed by Justice Hill in sentencing illustrates its own construction of a judicial narrative that, I would respectfully suggest, obscures and fails to present an accurate image of the crime and the offenders at bar in these cases.
%?ra note 329 at 180. Swpranote329atl80. %?ra note 329 at 180. 152
As with its discussion of Justice Hill's general approach to the cases of Ms.
Hamilton and Ms. Mason, Justice Doherty prefaces his comments on the analytical framework for sentencing with solicitudes towards the lower court by acknowledging that
"[sentencing is a very human process. Most attempts to describe the proper judicial approach to sentencing are as close to the actual process as a paint-by-numbers landscape
• SIR is to the real thing." One way to systematize this "human process", Justice Doherty suggests, is through the application of the various sentencing provisions set out in the
Criminal Code. Of the various principles, Justice Doherty begins with a discussion of proportionality which, he suggests, has long been held out as the "touchstone of Canadian sentencing law."519 The principle is set out in the Criminal Code as follows: "a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender."520 After providing some further analysis on proportionality, Justice Doherty qualifies his comments thus far by stating that although "[proportionality is the fundamental principle of sentencing [...] it is not the only principle to be considered."521
Acknowledging the various sentencing provisions set out in the Criminal Code's s. 718.2,
Justice Doherty goes on to state that "parity, totality, and restraint are also principles which must be engaged when determining the appropriate sentences." While I have previously discussed Justice Doherty's treatment of the restraint principle in an earlier section, I will now turn my attention to his approach towards the parity principle and what a close reading of Clarke's novel can contribute thereto.
Supra note 466 at para. 87. Supra note 466 at para. 89. Supra note 466 at para. 95 citing supra note 445 ats. 718.1. Supra note 466 at 95. 153
Although the parity principle does not receive the same explicit consideration as that of proportionality or restraint in Justice Doherty's decision, this is not to say that it was not a major consideration in this appeal. Set out in the Criminal Code, the parity principle asserts that: "similar offenders should receive similar sentences for similar offences under similar circumstances."522 Indeed, the question of parity was challenged at the outset by the Crown in its reasons for appeal when it expressed concern that
"stripped to the essential [elements of the case], the respondents received conditional sentences because they were poor, black, and female."523 The inference was that Justice
Hill erroneously reduced the sentences of both women by allowing the above "factors" to
"diminish the seriousness of the offence or justify a conditional sentence."524 This, suggests Devlin and Sherrard, reflects a concern that "an accommodative approach on the basis of intersecting inequalities offends the important 'parity principle' of sentencing."525 They go on to state that this "requires serious and substantive consideration of [the offender's] background and history, including any extenuating circumstances of the accused."526 Justice Doherty acknowledges the duty of consideration when, citing the Court of Appeal's decision in R. v. Borde, he notes the obligation of a trial judge to consider "all factors germane to the gravity of the offence and the personal culpability of the offender" which may, in some cases, "encompass racial and gender bias."527 These factors should indicate that they "played a role in the commission of the offence" and offer some "explanation for the offender's commission
522 Supra note 445 at s. 718.2(b) 523 Supra note 466 at para. 34. 524 Supra note 466 at para. 34. 525 Supra note 441 at 432. 526 Supra note 441 at 432. 527 Supra note 466 at para. 134. 154
of the crime" but, in the instant case, Justice Doherty was unwilling to accept that the
question of race provided any explanation for the "impoverished circumstances and poor
economic prospects" which played an important role in Hamilton and Mason's decision
to commit these crimes": "I do not think it is particularly helpful or necessary to try and
attribute the respondent's economic circumstances to systemic societal racial or gender bias."528 In doing so, Justice Doherty lays fault at the feet of Ms. Hamilton and Ms.
Mason for their failure to "forge any evidentiary connection between institutional racial
and gender inequality and their particular circumstances" as well as Justice Hill for not
"attempt[ing] to bring the generalizations set out in the material [...] hope to the lives of these respondents."529
While the parity principle is designed to ensure equity in the sentencing of equally
culpable offenders, by logical extension, it can also serve to expose inequalities and bias when comparing similar cases. The latter is precisely Clarke's intent when he supplies the following postscript to his novel following the execution of George and Rufus
Hamilton:
In December 1949, just outside of Montreal, two men—Kenneth Bevin, seventeen, and Girvin Patenaude, nineteen—called a taxi driver, directed him out to the sticks, and, after driving about seven miles, hammered his head five times—making that indescribable sound that striking a hammer against a skull makes. They threw his corpse off a bridge into a murky river. The teens used the slain man's money to buy tow boxes of shells, then they drove to a small town and robbed a bank with two .45 pistols that looked like bazookas. They took "$5,000, and the cops found them the next night asleep in a barn. They were sentenced to die. Ninety minutes before their hanging, word came their sentences'd been commuted to life in prison. George and Rue—black—had no such white luck.530
Supra note 466 at para. 137. Supra note 466 at para 137. %?ra note 429 at 214 155
Like the fictional George and Rufus Hamilton before Justice Chaud, Bevin and
Patenaude's crime is chronicled in the black and white of facts and consequences. Prima facie, their crimes are identical but Clarke challenges his reader to look beyond the obvious fact and explore considerations that may not have been convincing for the court but are no less valid. What were the personal circumstances of the two young
Quebecois? Were their actions motivated by animus, poverty, youthful indiscretion or a combination of all three? The reader's familiarity with the Hamiltons' story leaves them questioning not only if the crimes chronicled were, in fact, equal, but, if so, why was there a disparity in sentencing. Given the context supplied but Clarke throughout the novel that failed to find mention inside Justice Chaud's courtroom we are left to conclude that it was "white luck" that spared two young men yet fated two others to the gallows.
Clarke's argument is clear; such considerations should be manifest in contemporary
Canadian courtrooms to ensure equity in sentencing.
With regards to the differing application of clemency in cases where the death penalty has been assessed, Clarke's motive for including this postscript is twofold.
Firstly, he shines a light on the acknowledged but underreported bias in such capital cases where condemned offenders were "subject to a lottery rigged by politics and economics and manipulated by unconscious racism and social prejudice."5 Clarke's second motivation is to challenge the notion that such disparities no longer occur within the
Canadian legal system. While the option of capital punishment thankfully no longer exists, there is clear evidence that a disparity of sentencing is still present. This is effectively demonstrated by Justice Hill through his statistical analysis of the disproportionate rates of incarceration for African-Canadians and women as well as the
531 Supra note 430 at 70. 156 unique trends for drug importation crimes that appear before his courtroom. Just as
Justice Chaud chooses not to recognize the various aspects of George and Rufus's lives that contributed to their crime resulting in a sentence significantly different than comparable criminals, so are Hamilton and Mason the recipients of a decision that perpetuates disparity by ignoring their history and circumstances.
g. Ramifications for Adjudication
The assertion that a trial judge should limit their sentencing considerations to "the clear facts" of a specific crime" and a "specific offender" may initially appear to satisfy a judicial ideal but, as Clarke reveals, it fails to construct a full, accurate, and equitable judicial narrative in cases involving members of historically marginalized communities.
George & Rue proffers several instructive themes for lawyers and jurists alike, but it is this challenge by Clarke to acknowledge the absence of an accurate African-Canadian legal narrative that gains significance in light of the recent Ontario Court of Appeal decision in R. v. Hamilton. Within his fictionalized retelling of familial fact, Clarke calls his reader to recognize that Justice Chaud's delimitation of "clear facts" neglects to consider many important details that qualify both offenders and their crime. In Hamilton, we observe a similar delimitation of fact with an equally guilty outcome. In both cases, their original authors (Clarke and Justice Hill respectively) do not contest the elements of crime that brought both pairs of accused before them. Rather, they suggest that a more complete, and thereby accurately just, judicial narrative demands that a trier of fact, whether an author's audience or presiding judge, understand the influences that shape the culpability of an offender. This is not necessarily a call for a different result but a 157
different methodology of approaching an offender's personal narrative. As Devlin and
Sherrard astutely note, "[b]y oversimplifying and reducing the complex nature of lived
[...] race and class-based discrimination, such a view seeks to diminish and negate the
vital impact these forces can have on the individual."533 Indeed, both Clarke and Justice
Hill are aware that issues within the criminal law are inevitably human and, as such,
rarely straightforward. Their narratives, therefore, are not "simple" or exclusively
"specific" but instead expose truths about a larger African-Canadian experience that are relevant to the culpability of the offenders in their respective cases.
As Clarke notes, the initial impetus for the works that would become "Execution
Poems" and George & Rue was familial and personal however his research and writing
effectively illustrate the potential success such archival excavation can hold in broader
application. Historian Carolyn Strange notes the untapped potential for such discovery
amidst the documentation of the greatest violence enacted by the Canadian state
contained in capital case files:
As a historical data set, the case files inspire certitude: not only is the collection remarkably complete (ranging from 1867 to 1976, when capital punishment was abolished), but the vast majority of case files include all information they were meant to contain about condemned persons: trial transcripts, judges' reports, justice department evaluations, and cabinet decisions. Individuals' files tell the stories both of those whose sentences were commuted and those who perished on the gallows. Remarkably few Canadian researchers have mined this rich vein of evidence [...]. Encountering this evidence is like being dropped on the peak of a mountain blanketed in snow: these are records that historians dream of ploughing through.534
Like Strange, Clarke is conscious of the "facts" he encounters or, to a significant degree, notes in their absence. It is with this documentary context firmly established that Clarke
532 Supra note 441 at 438-439. 533 Supra note 441 at 422-423. 534 Carolyn Strange, "Stories of Their Lives: The Historian and the Capital Case File" in Franca Iacovetta & Wendy Mitchinson, On the Case: Explorations in Social History (Toronto: Toronto UP, 1998) at 26. 158 challenges his reader to acknowledge that stories of African-Canadian interaction with the legal system have been distorted or, even worse, virtually absent. Fortunately, as
Clarke notes, these are "recoverable narratives" that can be exhumed from the archives.
As such, in the process of writing this counternarrative Clarke note only "blackens" the page of his work with the revoking of an Africadian experience previously lacking within Canadian literature but he also reveals the inherent uncertainty of an African-
Canadian narrative premised on biased white documentation. As he suggests, "[fjo establish other versions of these [legal narratives], scholars must exhume the bodies of the officially destroyed, the authoritative 'Others' of our collective past." This is necessary to not only revoice previously erased narratives but also to illustrate how equally (and, in some cases, more) believable counternarratives can exist in contrast to the limited narratives within a majoritarian Canadian legal system.
Clarke's concern with facts, however, is not exclusively rooted in history. His work calls his reader to acknowledge that the same racialized strictures faced by George and Rufus within Canadian society generally and the Canadian judicial system specifically also confront African-Canadians today. Born into lives of poverty with a significant pattern of abuse, George and Rufus encountered discrimination throughout their lives in the areas of education, employment, and their eventual portrayal as cold blooded killers by the Fredericton media. How, Clarke queries, is their story any different from those of other Black youths of a similar age who find themselves before a
Canadian court today? Clarke's reclamation of archival narratives, therefore, is also intended to illustrate not only prior but also a contemporary erasure of a complete
African-Canadian narrative from within the Canadian legal system. The fact that these
535 Supra note 144 at 82-83. 159 stories are recoverable does not, in any way, diminish the injustices previously experienced but it does suggest how they can be corrected. Indeed, in light of the Ontario
Court of Appeal's decision in R. v. Hamilton, Clarke's novel suggests an insightful critique of how marginalized narratives have been (and are) treated within Canadian courtrooms.
The analysis of Clarke's writing in this chapter reveals the potential for Canadian law to be viewed through the lens of another social document, Canadian literature.
Although not consciously addressing the same common law and statutory questions as those before the Ontario Court of Appeal, Clarke's work nonetheless explores a related concern: can an individual's culpability be accurately assessed when divorced from identifiable patterns of systemic racism that frame not only the crime but the offender?
As we have seen, the Ontario Court of Appeal is hesitant towards this contextual approach whereas Clarke demonstrates how this composes a necessary narrative that has been lacking within the Canadian justice system. While it would be unreasonable to suggest that a court preference the reasoning contained in a piece of literature over that found in case law or the imperatives directed by statute it would be equally reasonable to suggest that we, as lawyers, academics, and individuals, could not benefit from the insight expressed by the chroniclers of our society in its various artistic forms. This insight could, and should, inform our actions and decisions, judicial and otherwise.
Justice Chaud may be a fictional character but, as we observe, he is emblematic of practices within the Canadian justice system today that continue to erase an African-
Canadian reality from case law. His belief that the case before him rested exclusively on the facts of the crime itself only tells part of the story. Clarke's novel illustrates this by 160
contrasting the limited narrative permitted within Justice Chaud's courtroom with the
more complete story contained in the rest of the novel. The act of judging and its
resultant task of sentencing is, as the Ontario Court of Appeal suggests, difficult but it is made more so when a judge only has a part of the information necessary to make an
informed decision.
But Chaud is not the only character within the novel on which Clarke levels his
critical eye. While Justice Chaud may have been responsible for the final judicial narrative contained in the guilty verdict and death sentence of George and Rufus
Hamilton we, as readers, recognize that he was not alone in their composition. The very nature of the litigation process is one in which lawyers are called upon to present the most convincing version of the facts to a judge so that a decision may be reached. In the context of a criminal trial, the generally confrontational nature of litigation is qualified somewhat by an ethical obligation on the Crown to put forward an unvarnished version of the truth regardless of whether it secures a conviction or not. Within the novel, Clarke demonstrates that all the lawyers involved had failed in their duties, both to the Court and their client resulting in an incomplete story being written on the court record. In the person of Alphaeus Boyd we see a Crown Prosecutor seized with his own aspirations and not the truth. His unwillingness to acknowledge the extent to which African-Canadians have been "oppressed" assures that no mention thereof will occur within the court to qualify George and Rufus's culpability. Furthermore, in the personages of the
Hamilton's lawyers we observe two practitioners ignorant to the impact of race on their clients. Indeed neither chose to examine further the underlying conditions that led both men to commit their crime. 161
Ultimately, Clarke's novel is a critique of the Canadian legal system and those who function therein that exposes a failure to tell the whole, and thereby just, truth. By contrasting the speech permitted within the trial with an equally valid truth that exists outside of it we are forced to acknowledge that no complete understanding of African-
Canadian criminality can occur without placing the alleged crime within a larger context.
Furthermore, by acknowledging an essential narrative that exists outside of the confines of a courtroom, Clarke challenges his reader to identify a comparable presence or (more likely) absence in the narrative of our nation's judges. While the decision of the Ontario
Court of Appeal may cause some jurists to refrain from conducting a truly contextualized adjudication it should not be viewed as conclusive. Like Clarke's reclamation of his cousin's story, these narratives exist in the archives and can be revoiced however a contemporary recognition thereof is always preferable. 162
Chapter 5: Conclusion
At the conclusion of this thesis, it is perhaps worthwhile to revisit the comments of George Elliott Clarke that ground his own examination into an aspect of Canadian Law and Literature scholarship: "America is not always an enlightening mirror for
Canada."536 This is certainly the case within Clarke's context of African-American and
African-Canadian crime narratives but it is also true within the larger frame of how each country has chosen to reflect an important aspect of its social makeup within its respective national literature: namely, the law. Americans have not only told different stories about the law than Canadians but, as demonstrated within this thesis, they have also chosen to examine their national legal narrative in a much different way than that present in Canada until recently. The answers, therefore, to the questions surrounding the late arrival of a uniquely Canadian legal literature as well as a Canadian Law and
Literature scholarship will not be discovered solely by looking at the issues through the lens of established Law and Literature scholarship that is predominantly American in both source and orientation. Rather, they must also be placed within a unique Canadian context that recognizes the specific social, legal, and legal pedagogical influences that brought about the current approach to Canadian Law and Literature scholarship.
The contemporary study of Law and Literature emerged alongside various other
"law ands" during the 1960's and 1970's however its roots stretch much further back into
American history; indeed, to the country's very genesis. For many young lawyers, their training in the law demanded a broad reading of a variety of subjects facilitated by extensive reading lists. This, however, was not always the case as many lawyers rose to
536 Supra note 144 at 67. 163 the profession on the strength of one text: Blackstone's Commentaries. Once in practice, however, all lawyers recognized the need to bolster their argument by citing from the classics of western literature. This was viewed as not only essential to fine legal argument by American jurists but also entertaining by the hundreds of citizens who flocked to the nation's courtrooms for their dose of legal drama. As some of America's earliest writers, orators, editors, and publishers, these lawyers became not only "men of letters" but also leaders within their new nation. This engagement between law and literature took a relatively brief hiatus during the heights of legal formalism spurred on by individuals such as Harvard's Christopher Columbus Langdell but it was not long in returning. With the reading lists of Eugene Wambaugh and John Wigmore, law students and lawyers alike were challenged to recognize the touchstones present within literature that could be applied to their own legal practice. The subsequent scholarship of Justice
Benjamin Cardozo challenged these same individuals to recognize that legal argument and opinion held the capacity to express not only style but also meaning through its composition. Law was, according to Cardozo, a language that could provide more (or less) successful outcomes through the organization of facts, argument, and opinion; or, as
Cardozo coined, architectonics. These initial efforts within the study of Law and
Literature would eventually lead to its contemporary study throughout the United States.
Although the lines have become somewhat blurred in recent years with greater curricular integration, contemporary Law and Literature scholarship divides itself into two strands: the law in literature and the law as literature. Advocates of the law in literature approach, including noted scholar Richard Weisberg, suggest that the study of literature can have a humanizing effect on lawyers through their search for standard 164 themes and interpretive strategies common within both law and literature. In spite of its initial focus on the "Great Books" of western literature, recent criticism by feminists and
Critical Race Theorists have opened up the study of law in literature to a more representative survey of texts and, thereby, a greater relevance through the inclusion of previously excluded voices. The law in literature approach has also been subject to two further criticisms: firstly, critics are suspect of the claim that reading literature will necessarily make a lawyer a more humane practitioner; and secondly, that it is rather simplistic and formulaic in its scholarly approach.
On the other side of the Law and Literature equation, the law as literature approach has proven to be a rather fertile area of debate and discussion. An extension of
Cardozo's earlier scholarship, the law as literature approach asserts that the law is not a science but rather an ever-evolving creative activity and therefore subject to the same interpretive tools as literature. Accordingly, lawyers should take care to recognize not only how a legal narrative is told but also how it is interpreted. These two considerations constitute the two additional subdivisions within the law as literature strand: narrative and hermeneutic scholarship. Narrative scholarship asserts that the law is fundamentally a process of storytelling wherein the storyteller is often as important as the story told.
Again, the work of feminist and Critical Race Theory scholars proves important within this area of study as they reveal the necessity for the inclusion of previously marginalized voices to not only revoice previous erased narratives but also to challenge the accepted legal narrative and reveal other possible narratives. Richard Delgado's agony tale, counterstory, and majoritarian narrative are three examples of these narratives. Within hermeneutic scholarship, the debate is focused on a lawyer or judge's interpretation of a 165
text as well as the authority for arriving at such an interpretation. Lawyers are prompted
to examine the writings of cultural philosophers such as Michel Foucault, Ronald
Dworkin, Robert Cover, and Stanley Fish in an attempt at clarifying not only the law's
interpretive framework but also the very nature of legal interpretation. Like its
counterpart, the law as literature approach has also been the subject of criticism with two
notable points of contention. Firstly, there is a concern that, however insightful on their
own, the various forms of narrative scholarship have the potential to conflict with each
other and effectively nullify the debate. Secondly, the lack of agreement among scholars
as to the most appropriate narrative or hermeneutic methodology has resulted in some
scholars, the most notable being Law and Economics scholar Judge Richard Posner,
questioning the limited insight one might gain from the study of Law and Literature.
As an area of study, Law and Literature has demonstrated significant growth within the United States. As evidenced by Elizabeth Villiers Gemmette's two surveys of
course curricula, Law and Literature courses could be found within almost half of all
American law schools by 1995. The same, however, could not be said for course offerings within Canadian law schools until recently. Furthermore, unlike the copious
examples of American legal literature that brought about this area of study, Canadian literature demonstrated a significant absence of legal subject matter until the late 1920's.
This thesis attempts to provide some explanation for these absences.
With respect to the absence of a significant early Canadian legal literature, the conclusion reached herein is that such an absence is directly tied to the expression of literary nationalism by early Canadian writers who were also members of the
Establishment. Called to celebrate their new country while simultaneously differentiating 166 its citizens from their rebellious neighbours to the south, Canadian authors initially chose to focus on the landscape and emblematic images that they believed would define their country instead of calling for radical changes to arrive at nationhood or by questioning the laws that governed their lives and maintained the status quo: the very sources that early American literary lawyers chose to gravitate towards.
Although most Canadian writers would continue to be drawn from a grouping of university-educated elites, by the 1920's a concern over the relationship between the writer and the society on which they were called to reflect was expressed by several authors who were also members of Canada's political left. Counting amongst their numbers the noted legal scholar and poet F.R. Scott as well as Earle Birney and Dorothy
Livesay, these writers challenged the disengaged creativity of writers who chose to remain willfully blind to the social reality facing Canadians at that time. Probably one of the most effective forms of social critique that emerged during this period was found within the dramatic forum and its use of agitprop theatre. Expressing a consciousness of how questions of class and the law were intimately related, agitprop playwrights chose to shine a light upon abuses by the police and legal system against the radical left. Further literary and pop-culture efforts would bring Canadians in contact with the law including the highly popular true crime novel as well as radio plays, television dramas, and even opera amongst other outlets. Canadian authors and artists would continue to document events of national and local importance that contained legal significance. Coupled with the emergence of immigrant, Aboriginal, and feminist voices as well as significant developments in literary theory that questioned the accuracy of history, narrative, and, in some cases, the law, Canadian literature and pop culture have emerged as an important 167 source for future creative activity involving legal subject matter in a uniquely Canadian context.
With respect to the late arrival of Law and Literature scholarship within Canadian law schools, the conclusion reached herein is that these courses did not begin to be included in significant numbers on law school curricula until sufficient support for interdisciplinary research and instruction was present within the respective law schools.
Indeed, a uniquely Canadian Law and Literature scholarship serves as an excellent case study for the larger trends within Canadian legal pedagogy.
As noted within this thesis, it is unlikely that Canadian legal academics or law students would have been aware of the initial efforts within Law and Literature. The reason for this stems from not only how law students were taught but also where they were taught. Unlike the United States with its long-established academic model of legal education, Canadian legal education generally occurred outside of the university and was principally governed by the various provincial law societies until well into the twentieth century. Accordingly, its curricular focus reflected the involvement of the law societies and was professional in nature. Although notable exceptions exist, the real shift towards a university-based legal education did not occur until a significant debate over pedagogical choices at Osgoode Hall led to the establishment of the University of
Toronto faculty of law in 1949. As before, provincial law societies continued to exercise significant control over course offerings until 1969 when a greater degree of choice was placed back in the hands of law faculties and law students.
With the significant shift towards a university-based legal education as well as new course methods and areas of scholarship, questions surrounding the quality of both 168 legal education and scholarship eventually led to what has become known as the Arthurs
Report. Therein, Osgoode Hall law professor Harry Arthurs expressed concern that law faculties were not succeeding in offering their students a broad, academic legal education within a liberal arts institution nor were professors sufficiently engaged with fundamental questions of law within their research. In order to correct this, Arthurs recommended, amongst several other things, that law schools develop an academic stream of legal education as well as promote a broader approach to research by their professors. While the actual impact of the Arthurs Report has been the subject of some debate, this thesis concludes that the Report has exercised a positive influence on law faculties across the county through an increased academic and interdisciplinary study of law. One need only look to the current practice of Canadian Law and Literature scholarship for proof thereof.
Within their courses, the relatively small number of academics teaching within this area challenge their students to approach legal questions from an interdisciplinary perspective.
Their innovative course offerings draw on the use of film, art, and artifact within the classroom or even the moot court and allow students to explore fundamental legal questions through the lens of literature and literary theory. The growth of a uniquely
Canadian Law and Literature scholarship is, therefore, the direct result of legal interdisciplinarity and its further development within Canada requires that more law professors adopt and interdisciplinary approach within their classroom and research practice.
After a survey of Law and Literature scholarship generally and in its relatively new Canadian context, this thesis turned its analytical focus toward George Elliott
Clarke's George & Rue. Indeed, this is the one of the first times that a piece of Canadian 169 literature has undergone analysis within a Law and Literature framework. Clarke's novel proved to be an apt first choice as it bridges several aspects of Law and Literature scholarship. Through the reclamation of his maternal cousins' legal narrative ripped from the pages of court transcripts, archival documents, and headlines, Clarke's careful treatment of their historiography allowed their story to become emblematic of a larger
Africadian community and reality. Indeed, this thesis concludes that the significant usage of historiographic metafiction within Canadian literature provides Canadian authors with the ability to mine case files and law reports for previously untold stories from marginalized groups within Canadian society.
As demonstrated by Clarke within his novel, this reclamation may also present the opportunity to construct a counterstory that pulls the lynchpin out from an accepted legal narrative and challenges the reader to acknowledge an equally plausible alternate retelling of the same story. Within Clarke's counterstory, the reader is directed away from the official, majoritarian narrative found within the trial transcripts used as source material for the work. Instead, Clarke allows both George and Rufus to tell their own version of the racialized circumstances that that brought them to commit such a "slug ugly" crime. In Clarke's opinion, a true understanding of the brothers' crime demands a broader retelling than the "clear facts" prescribed by a trial judge; it demands context.
The question of contextual adjudication also surfaced in the case of R. v. Hamilton which was coincidentally decided by the Ontario Court of Appeal in the same year that Clarke's novel was published. Clarke's novel proves to be an insightful lens through which the
Ontario Court of Appeal's decision may be viewed and critiqued. This thesis concludes 170 that future Canadian case law might benefit from a similar enlightening analysis through a literary lens.
To conclude, this thesis demonstrates that the late arrivals of a Canadian legal literature and Canadian Law and Literature scholarship are due to social, literary, and legal pedagogical reasons that are uniquely Canadian. While Canadian Law and
Literature scholarship will necessarily draw upon well-established source material that is predominantly American, there is a clear indication on the part of Canadian academics in this area that they view a Canadian context as an important aspect of their curriculum and scholarship. This is evidenced by the fact that all professors teaching in Canada include some form of Canadian literature, pop culture, legislation, artifact, or judicial decision within their curriculum. As demonstrated within this thesis, the use of a piece of
Canadian literature provides for a rather insightful analysis of the law. It is hoped that the preliminary work of chronicling the influences upon Canadian legal literature as well as the early examples of Canadian Law and Literature scholarship will support a case for the expanded study of this significant scholarly area in the future. 171
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Michael Pantazakos, "Ad Humanitatem Pertinent: A Personal Reflection on the History and Purpose of the Law and Literature Movement" (1995) 7 Cardozo Stud. L. & Lit. 31. 186
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Appendix A: Survey of the Instruction of Law and Literature within Canadian Law Schools537
Law School Course Offered
University of Alberta Yes
Instructor: Professor Lynn Penrod
Course Title: Jurisprudence [Representations of Law in Literature]
Works on current reading list:
Primary works
Margaret Atwood, Alias Grace (1996)
Honore de Balzac, Colonel Chabert (1832)
Albert Camus, The Outsider (1942)
Wilkie Collins, The Law and the Lady (1875)
Charles Dickens, Bleak House (1852-1853)
Barbara Kingsover, The Bean Trees (1988)
. Pigs in Heaven (1994)
Harper Lee, To Kill a Mockingbird (1960)
Herman Melville, "Bartleby the Scrivener" (1853)
. "Benito Cereno" (1855)
. Billy Budd, Sailor (1924)
Bernhard Schlink, The Reader (1995)
William Shakespeare, Measure for Measure (1604)
537 This information was compiled for the 2007-2008 academic year with the exception of the entry for the University of Manitoba which was extracted from Elizabeth Gemmette's "Law and Literature: Joining the Class Action" (1995) 29 Val. U.L. Rev. 665. 192
Richard Wright, Native Son (1940)
Other works taught in the prior ten years
William Shakespeare, Merchant of Venice (-1596-1598)
Honore de Balzac, Ursule Mirouet (1841)
W.H. Auden, "Law Like Love" (1940)
Charles Dickens, Pickwick Papers (1836)
Albert Camus, The Fall (1956)
Margaret Atwood, The Handmaid's Tale (1985)
Mark Twain, Pudd'nhead Wilson (1893-1894)
Anthony Trollope, OrleyFarm (1861-1862)
Recommended secondary readings
Professor Penrod has included selected articles, chapters, and other readings from critics such as James Boyd White, Robin West, Richard Weisberg, Stanley Fish, and Richard Posner as complimentary readings to the texts taught within her course. Professor Penrod has also provided students with a list of critical works related to the texts studied to assist students in the composition of their final essays.
Grading:
Major paper,, 70%; 1 oral presentation, 20%; and class participation, 10%
University of British Columbia No
University of Calgary No
Carleton University No
Dalhousie University No 193
Note: Students have produced papers on Law and Literature subjects within the law school's Jurisprudence and Critical Perspectives classes.
Universite de Laval No
University of Manitoba Yes
Instructor: Professor Anne McGillivray
Course Title: Law and Literature
Works on prior reading lists:—
William Gibson, Neuromancer (1984)
Franz Kafka, Before the Law (1925)
. The Problem of our Laws (1931)
. The Trial (1925)
Ursula Le Guin, The Left Hand of Darkness (1969)
Bram Stoker, Dracula (1897)
Jorges Louis Borges, The Lottery in Babylon (1941)
.Pierre Menard, Author ofthe Quixote (1939)
. Tlon, Uqbar, Orbis Tertius (1940)
Lewis Carroll, Alice's Adventures in Wonderland, ch. 11 Who Stole the Tarts?; c. 12 Alice's Evidence (1865)
John Crowley, Beasts (1976)
Laurence Delaney, The Triton Ultimatum (1977)
John Fowles, A Maggot (1985)
Frank Herbert, The Dosadi Experiment (1977)
Herman Melville, Billy Budd, Foretopman (1924)
538 The entries for Professor McGillivray's course were taken from Elizabeth Gemmette, "Law and Literature: Joining the Class Action" (1995) 29 Val. U. L. Rev. 665 at 789-791. 194
Marge Piercy, Woman at the Edge of Time (1983)
Robert Silverberg, Downward to the Earth (1970)
Teichroeb, Selected Stories
Sheri S. Tepper, The Gate to Women's County (1988)
Kurt Vonnegut, Harrison Bergeron (1961)
Ridley Scott, Blade Runner (1982)
Terry Gilliam, Brazil (1985)
Recommended Primary Works:
Mary Shelley, Frankenstein (1818)
Secondary Works taught previously:
A Response to Judge Heband, (published, Winnipeg Free Press op/ed page, November 1992).
Brian W. Aldiss & David Wingrove, "On the Origin of Species: Mary Shelley" in Trillion Year Spree: The History of Science Fiction (New York: Artheneum, 1986).
. "Out of the Gothic" in Trillion Year Spree: The History of Science Fiction (New York: Artheneum, 1986).
Aristotle, Rhetoric
Beauchamp, "The Frankenstein Complex and Asimov's Robots" (1980) 13 Mosaic 83- 94.
Benjamin Cardozo, "Adherence to Precedent: The Subconscious Element in the Judicial Process" in The Nature of the Judicial Process (New Haven: Yale UP, 1921) at 142.
Lief H. Carter, How Trial Judges Talk: Speculations About Foundationalism and pragmatism in Legal Culture in Gregory Leyh, ed., Legal Hermeneutics (Berkeley: California UP, 1992) at 220. 195
Robert J. Christopher, "Law, Literature and Humanistic Study" (1990) 6:1 Focus on Law Stud. 24.
Julius Henry Cohen, The Law: Business or Profession? (New York: Banks Law Publishing Co., 1916).
Columbia Guards the Bar, Law Students of Questionable Ethics are Dropped from Rolls, The Sun, March 23, 1916.
Kimberle Williams Crenshaw, "Foreword: Toward a Race-conscious Pedagogy in Legal Education" (1989) 11 Nat'l Black L.J. 1.
C.R.B. Dunlop, "Debtors and Creditors in Dickens' Fiction" (1990) 19 Dickens Stud. 25.
Ehreman, "Write Once, Read Once Literature" (1992) 11 PC Mag. 34.
Stanley Fish, "Working on the Chain Gang: Interpretation in Law and Literature" in Stanley Fish, Doing What Comes Naturally: Change, Rhetoric and the Practice of Theory in Literary and Legal Studies (Oxford: Clarendon Press, 1989) at 87.
. "Don't Know Much About the Middle Ages: Posner on Law and Literature" in Stanley Fish, Doing What Comes Naturally: Change, Rhetoric and the Practice of Theory in Literary and Legal Studies (Oxford: Clarendon Press, 1989) at 294.
. "Still Wrong After All these Years" in Stanley Fish, Doing What Comes Naturally: Change, Rhetoric and the Practice of Theory in Literary and Legal Studies (Oxford: Clarendon Press, 1989) at 356.
Peter Fitzpatrick, "Myth and the Negation of Law" in Peter Fitzpatrick, The Mythology of Modern Law (New York: Routledge, 1992) at 1.
. "Myth and Modernity" in Peter Fitzpatrick, The Mythology of Modern Law (New York: Routledge, 1992) at 13.
Mary Joe Frug, "Re-Reading Contracts: A Feminist Analysis of a Contracts Casebook" (1985) 34 Am. U. L. Rev. 1065.
Grey, A Change Not Quite Completed; Fat Cat, Ghostly Rabbit in The Wallace Stevens Case: Law and the Practice of Poetry
Carolyn Heilbrun and Judith Resnik, "Comment, Convergences: Law, Literature and Feminism" (1990) 99 Yale L.J. 1913-1956.
S. Sage Heinzelman, "Hard Cases, Easy Cases and Weird Cases: Canon Formation in Law and Literature" (1988) 21 Mosaic 59-72. 196
Veronica Hollinger, "Cybernetic Deconstructions: Cyberpunk and Postmodernism" (1990) 23 Mosaic 29.
David Howes, '"We Are the Word' and Its Counterparts: Popular Song as Constitutional Discourse" (1990) 3:3 Int. J. Pol. C. & Soc. 315.
Lawler, Certain Assistances: The Utilities of Speculative Fictions in Shaping the Future
Emily Martin, "The Egg and the Sperm: How Science Has Constructed a Romance Based on Stereotypical Male-Female Roles" (1991) 16 Signs 485.
Martinez-Bonati, The Stability of Literary Meaning in Mario J. Valdes & Owen Miller, eds., Identity of the Literary Text (Toronto: Toronto UP, 1985) at 231.
Patricia Monk, "Frankenstein's Daughters: The Problems of the Feminine Image in Science Fiction" (1980) 13:3 Mosaic 15.
Brian Morton, "L'Isle de Gilligan" (1990) Lingua Franca 28.
David Papke, "Discharge as Denouement: Appreciating the Storytelling of Appellate Opinions" (1990) 40 J. Leg. Educ. 145.
Richard Posner, Cardozo 's Judicial Technique in Richard Posner Cardozo: A Study in Reputation (Chicago: Chicago UP, 1990).
. Law and Literature: A Misunderstood Relation (Cambridge: Harvard UP, 1988).
W. Wesley Pue, Common Law Legal Education in Canada's Age of Light, Soap and Water (1996) 23 Manitoba L.J. 654.
Rosinsky, The Futures of Feminist Discourse
Scholes and Rabkin, The Sciences of Science Fiction
Schwartz, A Meditation of 'Bartleby'
Wallace, Sentences We Hated to Come to the End of (Book Review in the L.A.Times)
Ward, The Educative Ambition of Law and Literature
James Boyd White, "What Can a Lawyer Learn from Literature?" Review of Law and Literature: A Misunderstood Relation by Richard Posner (1989) 102:8 Harvard L.Rev. 2014-2047.
. The Legal Imagination: Studies in the Nature of Legal Thought and Expression (Boston: Little Brown, 1973). 197
Patricia J. Williams, "Crimes Without Passion" in Patricia J. Williams The Alchemy of Race and Rights (Cambridge: Harvard UP, 1991) at 80.
. "Gilded Lilies and the Literal Guilt" in Patricia J. Williams The Alchemy of Race and Rights (Cambridge: Harvard UP, 1991) at 15.
. "Trial by Text" in The Alchemy of Race and Rights in Patricia J. Williams The Alchemy of Race and Rights (Cambridge: Harvard UP, 1991).
McGill University Yes
Instructor: Professor Desmond Manderson, Canada Research Chair in Law and Discourse
Course Title: Linguistic and Literary Approaches to Law
Works on current reading list:
Primary Works
W.H. Auden, "Law Like Love" in Selected Poetry of W. H. Auden (New York: Random House, 1933) 62-64.
M.H. Abrams, entry for "Novel" in A Glossary of Literary Terms, 8th ed. (Boston: Thomson, Wadsworth, 2005) 197-204.
Jorge Borges, "Pierre Menard, The True Author of Don Quixote" in Ficciones trans, by Andrew Hurley (New York: Penguin, 1998) 88-95.
Chester v. The Council of the Municipality ofWaverly (1939) 62 CLR 1.
Genesis 22:1-22:14.
Franz Kafka, "The Penal Colony" in The Penal Colony: Stories and Short Pieces (New York: Schocken Books, 1976) 191-227.
. "Before the Law" in Parables and Paradoxes (New York: Schocken Books, 1961) 61-5.
. "The Problem of our Laws" in Parables and Paradoxes (New York: Schocken Books, 1961) 155-9. 198
Milan Kundera, Testaments Betrayed: An Essay in Nine Parts trans, by Linda Asher (New York: Harper Collins, 1995) 11-13.
Mabo v. Queensland [No 2] (1992) 175 CLR 1 in Tony Blackshield, George Williams & Brian Fitzgerald, Australian Constitutional Law and Theory: Commentary and Materials (Sydney, Federation Press, 1996) 199-207, 212-216.
Herman Melville, Billy Budd and Other Stories, Harold Beaver, ed. (Harmondsworth: Penguin, 1967).
Wilfred Owen, "The Parable of the Old Man and the Young" in Jon Stallworthy, ed. The Complete Poems and Fragments: Volume I: The poems (Oxford: OUP, 1983) 174.
Plato, "Crito" in Four Texts on Socrates: Plato's Euthyphro, Apology, and Crito and Aristophanes' Clouds trans, by Thomas G. West and Grace Starry West (Ithaca: Cornell UP, 1998)99-114.
. Introduction to "Crito," in The Trial and Death of Socrates: Euthyphro, Apology, Crito, Death Scene from Phaedo, translated by G.M.A. Grube, revised by John M. Cooper (Indianapolis: Hackett Publishing Company, 2000) 43.
Maurice Sendak, Where the Wild Things Are (United States: Harper Collins, 1991) (excerpts).
Mary Shelley, Frankenstein (Boston: Bedford Book of St. Martin's Press, 1992) 111-117.
Statutory Interpretation Act, R.S.C. 1985, c. 1-23, s. 10.
Tractate Bava Metzi'a 59(a-b), "The Oven of Aknai".
Secondary Works
M.H. Abrams, entry for "Novel" in A Glossary of Literary Terms, 8th ed. (Boston: Thomson, Wadsworth, 2005) 197-204.
Giorgio Agamben, "The Idea of Language I," "The Idea of Language II," and "Kafka Defended Against his Interpreters" in Idea of Prose (Albany, NY: State University of New York Press, 1995) 113, 115-117, 137-138.
Hannah Arendt, "What is Authority?" in Between the Past and the Future: Eight Exercises in Political Thought (Harmondsworth: Penguin, 1968) 91-104.
Milner S. Ball, "Mark, Isaiah, and the Empty Place" in The Word and the Law (Chicago: Chicago UP, 1993) 106-128 & 187-203. 199
. "Obligation: Not to the Law But to the Neighbour" (1984) 18 Georgia Law Review 919-927 (excerpt).
Roland Barthes, "Soap-powders and Detergents," "The New Citroen," and "Myth Today" (excerpts) in Mythologies trans, by Annette Lavers (New York: Hill and Wang, 1972) 36-8, 88-90, 109-117, 142-5 & 145-56.
Richard Beardsworth, Derrida and the Political (London and New York: Routledge, 1996) 98-102.
John Bender, "Prison and the Novel as Cultural Systems," in Imagining the Penitentiary: Fiction and Architecture of the Mind in Eighteenth-Century England (Chicago: University of Chicago Press, 1987).
Marianne Constable, "A Matter of History," in The Law of the Other: The Mixed Jury and Changing Conceptions of Citizenship, Law, and Knowledge (Chicago: Chicago UP, 1994)67-95, 168-173.
. "The 'Field of Pain and Death'" in Just Silences: The Limits and Possibilities of Modern Law (Princeton: Princeton University Press, 2005) 132-148.
Robert Cover, "The Bonds of Constitutional Interpretation: Of the Word, the Deed, and the Role" (1986) 20 Georgia L. Rev. 815-833.
. "Nomos and Narrative" (1983) 97 Harvard L.Rev. 4-68.
. "Violence and the Word" in Minow, Ryan and Sarat, eds., Narrative, Violence and the Law: The Essays of Robert Cover (Ann Arbor: Michigan UP, 1995) 203-238.
Jacques Derrida, "Force de Loi: Le 'Fondement Mystique de L'Autorite'" (1990) 11 Cardozo L.Rev. 936-7 & 944-5.
. "Declarations of Independence" in Jonathan Culler, ed. Deconstruction: Critical Concepts in Literary and Cultural Studies (London and New York: Routledge, 2003)24-31.
"Force de Loi: Le 'Fondement Mystique de L'Autorite'" (1990) 11 Cardozo L.Rev. 958-9,968-9.
. "Before the Law" in Derek Attridge, ed. Acts of Literature (New York and London: Routledge, 1992) 181-220.
Michel Foucault, "Qu'est-ce qu'un auteur?" in Dits et Ecrits: 1954-1988 (Paris: Editions Gallimard, 1994) 789-821. 200
Sigmund Freud, Totem and Taboo: Resemblances between the psychic lives of savages and neurotics (London: Routledge, 1926) 3-4,230-43.
Hans-Georg Gadamer, "The Recovery of the Fundamental Hermeneutic Problem" in Truth and Method, 2nd rev. ed. (New York: Continuum, 1995) 307-341.
Bonnie Honig, "Declarations of Independence: Arendt and Derrida on the Problem of Founding a Republic" (1991) 85 American Political Science Review 97.
Barbara Johnson, "The Surprise of Otherness" in Peter Collier and Helga Geyer-Ryan, eds. Literary Theory Today (Ithaca, N.Y: Cornell University Press, 1990) 13-22.
Alexandre Kojeve, La notion de Vauihorite (Paris: Gallimard, 2004) at 66-71.
Milan Kundera, Testaments Betrayed: An Essay in Nine Parts translated by Linda Asher (New York: Harper Collins, 1995) 1-8.
D.H. Lawrence, "Morality and the Novel" and "The Novel and the Feelings" in Bruce Steele, ed. Thomas Hardy and Other Essays (Cambridge: Cambridge University Press, 1985) 171-6,201r5.
Bruce Lincoln, "Constructing Authority" in Authority: Construction and Corrosion (Chicago: University of Chicago Press, 1994) 1-13 & 165-171.
Bill MacNeil, "The Monstrous Body of the Law: Wollstonecraft vs Shelley" (1999) 12 Australian Feminist Law Journal 21-40.
Desmond Manderson, "From Hunger to Love: Myths of the source, interpretation, and constitution of law in children's literature" 15 Law and Literature (2003) 87-142.
Irshad Manji, The Trouble with Islam (Toronto: Random House Canada, 2003) 53-67.
D.T. Max, "The Injustice Collector" in The New Yorker, June 19th, 2006 34-43.
Friedrich Nietzsche, The Birth of Tragedy (Cambridge: Cambridge University Press, 1999) 69-73.
Martha Nussbaum, Poetic Justice (Boston: Beacon Press, 1995) 27-49.
Walter J. Ong, Orality and Literacy: The Technologizing of the Word (London: Methuen, 1982) v-vii and 5-15.
George Orwell, "Politics and the English Language" in Irving Howe, ed. Orwell's Nineteen Eighty-Four: Text, Sources, Criticism, 2nd ed. (New York: Harcourt Brace Jovanovich, 1982) 248-259. 201
Michael Riffaterre, "Undecidability as Hermeneutic Constraint" in Peter Collier and Helga Geyer-Ryan, eds. Literary Theory Today (Ithaca, N.Y: Cornell University Press, 1990) 109-12.
Antonin Scalia, "Originalism: the Lesser Evil" in Walter F. Murphy, James E. Flemming, Sotirios A. Barber, and Stephen Macedo, eds. American Constitutional Interpretation (New York: Foundation Press, 2003) 243-8.
P. Christopher Smith, Introduction to Hans-Georg Gadamer, Dialogue and Dialectic: Eight Hermeneutical Studies on Plato (New Haven, CT: Yale University Press, 1980) ix-xi.
Susan Sontag, "Against Interpretation" in Against Interpretation and Other Essays (New York: Picador Press, 2001) 3-14.
Joseph Vining, The Authoritarian and the Authoritative (Chicago: Chicago UP, 1986) 3- 6.
Ian Ward, Shakespeare and the Legal Imagination (London: Butterworths, 1999) 1-7.
Ernest J. Weinrib, "Obedience to the Law in Plato's Crito" (1982) 27 American J. of Juris. 85-108.
James Boyd White, "Plato's Crito: The Authority of Law and Philosophy" (1994-1995) 63 U. Cincinnati L.Rev 44-50 (excerpt).
Raymond Williams, entry for "Literature" in Keywords: A Vocabulary of Culture and Society,rev. ed. (New York: Oxford University Press, 1983) 183-188.
Slavoj Zizek, "Superego by Default" in The Metastases of Enjoyment (London and New York: Verso, 1994) 54-65.
Recommended Readings:
Secondary Works
Robert Weisberg, 'The Law-Literature enterprise' (1988) 1 Yale J.L & Human. 1.
Richard Weisberg, Poethics and other Strategies of Law and Literature (New York: Columbia UP, 1992).
Kieran Dolin, Fiction and the Law (Cambridge: Cambridge UP, 1999).
J.L. Austin, How to Do Things with Words, 2nd ed. (Cambridge, MA: Harvard University Press, 2005). 202
Peter Fitzpatrick, Dangerous Supplements (London: Pluto Press, 1991).
Costas Douzinas et al., Postmodern Jurisprudence (London: Routledge, 1991).
Drucilla Cornell, Deconstruction & the Possibility of Justice (New York: Routledge, 1992).
Jon Culler, On Deconstruction (London: Routledge, 1983). Alan Hunt, 'The Big Fear: Law Confronts Postmodernism' (1990) 35 McGill Law J. 507.
Desmond Manderson, "Possessed: Drug policy, Witchcraft, and the Crisis of Belief Cultural Studies (2005) 19: 36-63.
Ian Ward, Law and Literature: Possibilities and Perspectives (Cambridge: Cambridge University Press, 1995).
Maria Aristedemou, Law and Literature: Journeys from her to Eternity (Oxford: OUP, 2000).
Bill MacNeil, Lex populi (Stanford: Stanford University Press, 2006 forthcoming).
Melanie Williams, Secrets and Laws - Collected Essays: True Tales of Law, Ethics and Literature (London: University College London Press, 2005).
Jacques Derrida, "Force de Loi: Le "Fondement Mystique de L'Autorite" (1990) 11 Cardozo Law Review 919-1045.
Richard Posner, Law and Literature: A Misunderstood Relation, (Cambridge, Mass.: Harvard University Press, 1988).
Robin West, "Authority Autonomy and choice: the role of consent in the moral and political vision of Franz Kafka and Richard Posner" (1985) 99 Harvard Law Review 384-428.
Robert Cover, 'Prelude' in Justice Accused: Anti-Slavery and the judicial process (New Haven: Yale University Press, 1975).
Philip Soper, "Another Look at the Crito" (1996) 41 American Journal of Jurisprudence 103-132.
Austin Sarat and Thomas R. Kearns, 'Making Peace with Violence', in Sarat and Kearns, ed., Law's Violence (Ann Arbor: University of Michigan Press, 1992).
Dominick La Capra, 'Violence, Justice, & Force of Law' (1990) 11 Card. L. Rev. 1065. 203
Peter R. Teachout, "Strains of Music: Understanding the Speech of the Nomoi in Plato's Crito" (1994-1995) 63 University of Cincinnati Law Review 51-94.
James Boyd White, Justice as Translation (Chicago: University of Chicago Press, 1990).
Pierre Bourdieu, Masculine Domination translated by Richard Nice (Stanford, California: Stanford University Press, 2001).
Ernst Cassirer, Language and Myth (New York: Dover, 1946).
Jacques Derrida, 'White Mythology: Metaphor in the Text of Philosophy' in Margins of Philosophy (Chicago: University of Chicago Press, 1982).
Roland Barthes, 'Myth Today' in Mythologies.
Barbara Leckie, 'The Force of Law and Literature: Critiques of ideology in Jacques Derrida and Pierre Bourdieu' (1995) 28 Mosaic 109.
Paul Patton, 'Justice and Difference: The Mabo Case' in Transformations in Australian Society, ed. Paul Patton & Diane Austin-Broos (Sydney: RIHSS, University of Sydney, 1997).
Colin Perrin and Scott Veitch, 'The Promise of Reconciliation' (1998) 4 (1) Law/Text/Culture 225.
George Lakoff, Metaphors we Live By (Chicago: U. of Chicago Press, 1980).
Robin West, 'Jurisprudence as Narrative: An Aesthetic Analysis of Legal Theory' (1985) 60 New York University Law Review 145.
David Couzens Hoy, 'Interpreting the Law: Hermeneutical and Poststructuralist Perspectives' (1985) 58 S. Cal. L. Rev. 136 Jeanne Schroeder, "The Four Discourses of Law" 79 Texas Law Review 15-98.
David S. Caudill, "Legal Language" and "Schlag's 'Problem of the Subject'", in Lacan and the Subject of Law (New-Jersey: Humanities Press, 1996), 42-82.
Peter Goodrich, 'Introduction' to Pierre Legendre, Law and the Unconscious, trans. P Goodrich (London: Macmillan, 1998).
Peter Goodrich, 'Introduction' to Oedipus Lex: Psychoanalysis, History, Law (Berkeley: University of California Press, 1995).
Symposium Issue, 'Law and the Postmodern Mind' (1995) 16 (3&4) Cardozo L. Rev. 699. 204
Instructor: Professor Desmond Manderson, Canada Research Chair in Law and Rhetoric
Course Title: Foundations of Canadian Law
Works on current reading list:
Primary Works Andrew Adamson, The Chronicles ofNarnia: The Lion, The Witch and The Wardrobe (2005).
Jay Bybee, Office of Legal Counsel US Department of Justice, Memorandum For Alberto R. Gonzalez, Counsel to the President, and William J. Haynes II General Counsel of the Department of Defense, Re: Application of Treaties and Laws to Al Qaeda and Taliban Detainees, January 22, 2002 (Edited excerpt).
Bruce Edwin Collins v. James A. Collins, Director, Texas Department of Criminal Justice, Institutional Division, No. 93 (1994), Supreme Court of the United States, February 22,1994, at 3-5; 6-8; 11-13; 15.
Carte 'Pays de coutumes et pays de droit ecrit au XVIeme siecle".
Chester v. Waverley Municipal Council (1939) 62 CLR 1.
Code civil du Quebec, art. 899-907.
Code of Hammurabi, Year 2 or 22 of the reign of Hammurabi, King of Babylonia, 1792- 1750 BCE.
J.M. Coetzee, Foe (New York: Penguin Books, 1986).
Concession de terre en censive, 18 nov. 1655.
Conference de l'avocat de bellefeuille (1864)
R v. Cote, [1996] 3 S.C.R. 139.
Honore Daumier, Three lawyers conversing, circa 1853.
Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010. 205
Sir Owen Dixon, Address upon taking the oath of office in Sydney as Chief Justice of the High Court of Australia on 21st April, 1952, in (1952) 85 Commonwealth Law Reports xi (High Court of Australia).
Donoghue v. Stevenson [1932] AC 562, in Harold Luntz and David Hambly, Torts, Cases and Commentary, 4th ed. (Sydney: Butterworths, 1995) at 122-129.
ReDrummond Wren [1945] O.R. 778 [1945] 4 DLR 674 (Ont. H.C.J.).
Edwards v. Canada (Attorney General) [1928] S.C.R. 276.
M.C. Escher, Drawing Hand (1948)
The Examiner, January 1861.
Franz Fanon, The Wretched of the Earth (New York: Grove Press, 2004) at 1-10,13-15.
Furman v. Georgia (1973), 408 US 445-451.
D. Girouard, Discours "convocation" de PUniversite McGill, vers 1860.
Hugo Grotius, Frontispiece to The laws of peace and war (1712).
Paul Haggis, Crash (2004)
Damien Hirst, The Elusive Truth (2004)
Thomas Hobbes, Leviathan (1651)
Franz Kafka, "Before the law" in Collected Stories, ed. by Gabriel Josipovici (London: Davis Campbell Publishers, 1993) at 173-175.
Gustav Klimt, Jurisprudence (1903)
Kruger v. Cth. (1995) 146 A.L.R. 126 (per Dawson, Gaudron, and McHugh II).
Philip Larkin, "This Be the Verse" (1974)
Logan v. Sykes (1959) 20 D.L.R. (2d) 416, [1959] O.W.N. 361 (Ont. H.C.) in John J. Burrows and Leonard I. Rotman, Aboriginal Legal Issues. Cases, Materials & Commentaries (Markham, Ont.: Butterworths Canada, 1998) at 689 -694.
Harrison v. Carswell [1976] 2 SCR 202.
Herman Melville, Billy Budd, Sailor and Other Stories, Harold Beaver, ed. (Harmondsworth: Penguin, 1967). 206
Rudyard Kipling, "The White Man's Burden" in McClure's Magazine (February 1899).
Miller v. Jackson, [1977] 3 W.L.R. 20; 121 S.J. 287.
Nouvelle coutume de Paris, Art. 88-95.
Lettre publiee dans La Minerve, 4 avril 1857.
Ngurrara Canvas
Re Noble and Wolf [194S] O.R. 579 [1948] 4 DLR 123 (Ont. H.C.J.).
Office of George W. Bush, President of the United States, Memorandum for the Vice President and al, Humane Treatment of the Al Qaeda and Taliban Detainees, February 7, 2002.
Prohibitions del Roy (1607), 12 Co. Rep. and James I Speech to Star Chamber (June 20, 1616), in J.P. Kenyon, The Stuart Constitution 1603-1688 (Cambridge: Cambridge University Press, 1966).
R. v. S. (R.D.), [1997] 3 S.C.R. 484.
Norman Rockwell, 4 Freedoms (1943)
Roncarelliv. Duplessis [1959] S.C.R. 121.
Maurice Sendak, Where the Wild Things Are (Harper Collins Publishers, 1963).
Sophocles, Antigone (-442 B.C.)
Alexis de Tocqueville, 'Un proces a Quebec, 1831', in Voyages en Sicile et aux Etats- Unis (Gallimard, 1957).
US Department of Defense (Donald Rumsfeld, Secretary), Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy and Operational Considerations, March 6, 2003.
Re Wishart Estate (1992), 46 E.T.R. 311 (NBQB).
Secondary Works
John Austin, The Province of Jurisprudence Determined, ed. H.L.A. Hart, 1954 in M.D.A. Freeman, Lloyd's Introduction to Jurisprudence, 7th Ed. (London: Sweet & Maxwell, 2001). 207
Etienne Balibar, "Racism and Nationalism" in Race, Nation, Class: Ambiguous Identities (New York: Verso, 1991) at 37-45.
Pierre Bourdieu, "Gender and Symbolic Violence" in Violence in War and Peace (Oxford: Blackwell Publishing Ltd, 2004) at 339-342.
John E.C. Brierley and Roderick Macdonald, Quebec Civil Law : An Introduction to Quebec Private Law, (Toronto: Edmond Montgomery Publications Limited, 1993) at pp 6-32.
Max Brod, "Postscript to the First Edition 1925 of Franz Kafka's The Trial, in F. W. Bishin & CD. Stone, eds. Law Language and Ethics (Mineola, N.Y.: Foundation Press, 1972) at 1.
. "Post Scriptum de la premiere edition de Le Proces de Franz Kafka" (Paris Folio, 1972) at 369.
John Burrows, Recovering Canada: The resurgence of Indigenous Law, University of Toronto Press, 2002 at 3-28.
Frank Carrigan, "A Blast from the Past: The Resurgence of Legal Formalism" (2003) 27 Melb. U. L. Rev. 163-185.
Bruce Chatwin, Songlines (London: Jonathon Cape, 1987).
J. Collins & B. Mayblin, Introducing Derrida (Icon/Totem Books, 2000) at 4,12,45-46, 48-49, 52-53, 70-71, 98-10,104.
Robert Cover, "Nomos and Narrative" (1983) 97 Harvard Law Review 4.
Jacques Derrida, "Declarations d'Independance" in Otobiographies : I'enseignement de Nietzsche et la politique du nompropre (Paris: Galilee, 1984) at 13-32.
Jacques Derrida, "Force of Law: The Mystical Foundation of Authority" (1990) 11 Cardozo Law Review 919-973.
Ronald Dworkin, "Integrity" in Law's Empire (Cambridge, Mass.: Belknap Press, 1986) at 176-184,190-192,202-208, 215-216.
Michel Foucault, Les mots et les choses. Une archeologies des sciences humaines (Paris : Gallimard, 1966).
. Surveiller etPunir (Paris, Gallimard, 1975) at p. 9-13, 201-203, 214-218, 226-229. 208
. Discipline and Punish, trans. Alan Sheridan (London: Allen Lane, 1975) at 3-7, 200-202, 213-217, 216-228.
Lon Fuller, "Positivism and Fidelity to Law" (1958) 71 Harvard L.Rev. 630-672.
John Gava, "Another Blast from the Past or Why the Left should Embrace Strict Legalism" (2003) 27 Melb. U. L. Rev. 186-198.
Jean-Louis Gazzaniga, Introduction historique au droit des obligations, (Paris: PUF, 1992) at pp. 35-62.
Peter Goodrich, "Law and Language: An Historical and Critical Introduction" (1984) 11 Journal of L.& Soc. 173.
. "Letter" in Law, Memory & Literature, Max Leskiewicz, ed. (St Lucia QLD: ALPSA, 2004) at 37-40.
Lise Gotell, "Not by Vriend" (2002) 17 Canadian Journal of Law and Society 89.
H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961).
. "Positivism and the Separation of Law & Morals" (1958) 71 Harvard L Rev. 593. Henry M. Hart & Albert M. Sacks, "The Great Pyramid of the Legal Order", in The Legal Process, William N. Eskridge & Philip P. Frickey, eds., (Westbury, NY: Foundation Press, 1994) at 568-569.
Douglas Hay, "Property, Authority and the Criminal Law," in Douglas Hay et al, eds., Albion's Fatal Tree (London: Allen Lane, 1975) at 17-63.
David Howes, "From Polyjurality to Monojurality: The Transformation of Quebec Law, 1875-1929" (1987) 32 McGill L.J. 524.
Alan Hunt, "Foucault's Expulsion of Law: Toward a Retrieval" (1992) 17 Law & Soc. Inquiry 1-38.
Hans Kelsen, "The Pure Theory of Law" (1934) 50 Law Quarterly Review 477 & 51 L. Quart. Rev. 517 at 517-518, 520-521.
A.T. Kronman, "Precedent and Tradition" (1990) 99 Yale L.J. 1029 at 1034-39,1043.
K. N. Llewellyn, The Bramble Bush. On our law and its study (New York: Oceana Publications, 1951).
Catherine Mackinnon, "Difference and Dominance" in Feminism Unmodified: Discourses on Life and Law (Cambridge: Harvard UP. 1987) at 32-45. 209
. "Feminism, Marxism, Method and the State, Toward Feminist Jurisprudence" in S. Harding, ed., Feminism and Methodology (Bloomington: Indiana UP, 1987) at 135- 156.
Desmond Manderson, Songs without Music. Aesthetic Dimension of Law and Justice (Berkeley: California UP, 2000).
Carrie J. Menkel-Meadow, "Feminist discourse, Moral Value and the Law - A Conversation" (1985) Buffalo L. Rev. 73-75.
Emmanuel Melissaris, "The More the Merrier—A New Take on Legal Pluralism" (2004) 13:1 Canadian Leg. Stud. 57-79.
Chandra Talpade Mohanty, "Cartographies of Struggle: Third World Women and the Politics of Feminism" in Feminism without Borders: decolonizing theory, practicing solidarity (London: Duke UP, 2003) at 43-53.
Sally Falk Moore, "Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study" in Law as Process, 2nd ed. (Oxford: James Currey, 2000)54-78.
Andre Morel, "La reaction des Canadiens devant 1'administration de la justice de 1764 a 1774 - une forme de resistance passive" (1960) 20 R. du B. 53-63.
Makau Mutua, "Human Rights as a Metaphor" in Human Rights: A Political and Cultural Critique (Philadelphia: Pennsylvania UP, 2002) at 22-38.
Sylvio Normand, "Un theme dominant de la pensee juridique traditionnelle au Quebec : La sauvegarde de l'integrite du droit civil." (1987) 32 McGill L.J 559.
Martha Nussbaum, Poetic Justice (Boston: Beacon Press, 1996) at 79-117.
Sherene Razack, "Savage Wars of Peace" and "Acting Morally in the New World Order: Lessons from Peacekeeping" in Dark Threats and White Knights: The Somalia Affair, Peacekeeping and the New Imperialism (Toronto: Toronto UP, 2004) at 2- 10,12-14, 153-166.
Boaventura de Sousa Santos "Law: A Map of Misreading. Toward a post-modern conception of law" (1987) 15 Journal of L. & Soc. 279-302.
Carl F. Stychin, "Rethinking Gender as Performative" in Law's Desire: Sexuality and the limits of justice (New York: Routledge, 1995) at 66-72. 210
Mariana Valverde, "Racial Masquerades: White Inquiries into "the Indian Style of Life"" in Law's Dream of a Common Knowledge (Princeton: Princeton UP, 2003) at 193- 209.
S.M. Waddams, Introduction to the Study of Law, 5th ed. (Scarborough, Ont: Carswell, 1997).
Jeremy Webber, "Tales of the Unexpected: Intended and Unintended Consequences of the Canadian Charter of Rights and Freedoms" (1993) 5 Canterbury L. Rev. at 207- 208, 218-234.
Recommended readings:
Primary Works
Brown v. Board of Education (1954), 347 U.S. 483.
Secondary Works
Giorgio Agamben, State of Exception (Stanford: Stanford University Press, 2005).
Roland Barthes, Mythologies (Paris : Seuil, 1970 and London: Grant & Cutler, 1994).
Isaiah Berlin, "Two concepts of liberty" in Four Essays on Liberty (Oxford: Oxford University Press, 1969)119 at 121-128, 131-138, 141-146, 149-152, 161-165, 171- 172.
Tony Blackshields et al., Australian Constitutional Law and Theory: Commentary and Materials (Sydney: Federation Press, 1996) 199-207, 212-216.
John Borrows and Leonard Rotman, Aboriginal Legal Issues: Cases, Materials & Commentaries (Markham, Ont.: Butterworths, 1998).
Pierre Bourdieu, La domination masculine (Paris: Editions du Seuil, 1998).
John E.C. Brierley, "Quebec's Civil Law Codification Viewed and Reviewed" (1968) 14 McGillLJ. 521.
Judith Butler, Gender Trouble (New York: Routledge, 1990). Tom Campbell, Justice, 2nd ed. (New York:. St Martin's, 2001).
Jean Carbonnier, "Morale et droit" in Flexible Droit: Pour une Sociologie du Droit sans Rigueur (Paris: L.G.D.J., 2001) 94-110. 211
. "Les phenomenes du droit dans leur contexte social" in Droit Civil, Introduction, 26e ed. (Paris :Presses Universitaires de France, 1999) 44-50, 55-57.
Robert Cover, "Violence and the Word," (1986) 95 Yale L.J. 1601-1629.
Centre de recherche en droit prive et compare du Quebec, Dictionnaire de droit prive et compare et lexiques bilingues : les obligations (Cowansville, Quebec: Editions YvonBlais, 2003).
Drucilla Cornell et al, eds., Deconstruction & the possibility of justice (NY: Routledge, 1992).
Gerard Cornu, Linguistique juridique, 2e ed. (Paris : Montchrestien, 2000).
David Couzens Hoy, "Interpreting the Law: Hermeneutical and Poststructuralist Perspectives" (1985) 58 S. Cal. L. Rev. 136.
Kimberle Williams Crenshaw, Critical Race Theory: Key Writings (New Press, 1996).
Margaret Davies, Asking the Law Question, 2nd ed. (Sydney: Law Book: 2003).
Costas Douzinas et al, Postmodern Jurisprudence (London: Routledge, 1991).
Susan Drummond, Incorporating the Familiar: An Investigation into Legal Sensibilities in Nunavik (Montreal: McGill-Queen's Press, 1997).
A. Emond, "Une synthese du droit des Autochtones : a propos d'un ouvrage de Sebastien Grammond" (2003) 44 C.d.D. 539.
M. Ferron et R. Cliche, Quand le Peuple Fait La Loi: La Loi Populaire a Saint-Joseph de Beauce (Montreal: Hurtubise/HMH, 1972) 13-24,127-133.
Michel Foucault, Power/Knowledge (New York: Pantheon, 1980).
Lon Fuller, "The Morality that Makes Law Possible" in The Morality of Law, (New Haven, Conn.: Yale UP, 1967) at 33-44.
John Gardiner, "Law as a Leap of Faith" in Peter Oliver et ah, eds., Faith in Law (London: Hart, 2000) 25.
Carol Gilligan, In a Different Voice (Cambridge: Harvard UP, 1982) at 24-39, 146-151, 170-174. H. Patrick Glenn, "Persuasive Authority" (1987) 32 McGill L.J. 261.
Peter Goodrich, Reading the Law (Oxford and Cambridge, MA: Basil Blackwell, 1986). 212
. Legal Discourse: Studies in Linguistics, Rhetoric and Legal Analysis (New York: St Martin's Press, 1987).
Angela Harris, "Race & Essentialism in Feminist Legal Theory" (1990) 42 Stanford L.Rev. 581.
David Howes, "Nomadic Jurisprudence: Changing Conceptions of the 'Sources of Law' in Quebec from Codification to the Present" in Contemporary Law (Cowansville: Editions Yvon-Blais, 1992).
Alan Hunt, Reading Dworkin Critically (New York and London: Berg, 1992).
Allan Hutchison, "Indiana Dworkin and Law's Empire," in Dwelling on the Threshold: Critical Essays (Toronto: Caswell, 1988).
Susan James and Stephanie Palmer, eds., Visible Women (Oxford: Hart Press, 2002).
Michael Kelly, ed., Critique and power (Cambridge, Mass.: MIT Press, 1992).
George Lakoff, Woman, Fire, and Dangerous Things. What Categories Reveal about the Mind (Chicago: Chicago UP, 1987).
Lucie Lamarche, "Le feminisme quebecois, la crise des droits et la recherche sur le droit: quelques raisons de s'inquieter ... et quelques autres d'esperer" (2000) 34 Cahiers de recherche sociologique 99.
Emmanuel Levinas, Ethique comme philosophic premiere (Paris: Rivages Poches, 1998).
Jean-Philippe Levy and Andre Castaldo, Histoire du droit civil (Paris : Dalloz, 2002).
William Lucy, Understanding and Explaining Adjudication (Oxford: Oxford UP, 1999).
Desmond Manderson, "From Hunger to Love: Myths of the source, interpretation, & constitution of law in children's literature," (2003) 15 Law & Literature 87.
Desmond Manderson and Sarah Turner, "Cafe La[w]tte or The Metamorphosis: Habitus and Performativity in the socialization of lawyers." (2006) 31:3 L. and Soc. Inquiry 649.
John Stuart. Mill, On Liberty [1869] (Harmondsworth: Penguin, 1975).
Patrick J. Monahan, "Judicial Review and Democracy: A Theory of Judicial Review" (1987) 21 U.B.C. L. Rev. 87.
Colleen Murphy, "Lon Fuller and the Moral Value of the Rule of Law" (2005) 24 Law and Philosophy 239-62. 213
G. Otis, "Les sources des droits ancestraux des peuples autochtones" (1999) 40 C.d.D. 591.
Donald Poirier, "Qu'est-ce que le droit? Reponse des theories" in Introduction generate a la Common Law, 2e ed. (Cowansville, Quebec, Yvon Blais, 2000) 43-52.
Adrian Popovici, "Dans quelle mesure la jurisprudence et la doctrine sont-elles sources du droit au Quebec? " (1973) 8 R.J.T. 189.
Jean-Marie-Etienne Portalis, "Discours preliminaire prononce lors de la presentation du projet" 24 thermidor an 8 in P.A. Fenet, Recueil Complet des travaux preparatories du Code Civil, t. 1 (Paris, 1827) 463.
Richard Posner, Law and Literature: A Misunderstood Relation (Cambridge, Mass.: Harvard University Press, 1988) at 115-129,132-175.
Preambule du Code civil du Quebec
Austin Sarat and Thomas Hearns, eds., Legal Rights: Historical and Philosophical Perspectives (Ann Arbor: Michigan UP, 1996).
Special issue - (1992) 17 Law and Social Inquiry
Cameron Stewart, "The Rule of Law and the Tinkerbell Effect: Theoretical Considerations, Criticisms and Justifications for the Rule of Law" (2004) 4 Macquarie L.J. 135-164.
J. Stone, Legal Systems and the Lawyers' Reasoning (Sydney: Maitland, 1968).
Brooke Thomas, Cross-Examinations of Law and Literature (New York: Cambridge UP, 1987), 201-22.
Patricia Tuitt, Race, Law, Resistance (London: Glasshouse Press, 2004).
Mary Ellen Turpel, "On the Question of Adapting the Canadian Criminal Justice System for Aboriginal Peoples: Don't Fence Me In" in National Round Table on Aboriginal Justice Issues (Canada, 1993) at 167-179.
Mark Tushnet, "An Essay on Rights," (1984) 62 Texas L.Rev. 1363-403.
Jeremy Waldron, ed., Theories of Rights (New York: Oxford UP, 1984).
Ian Ward, Law and Literature: Possibilities and Perspectives (Cambridge: Cambridge UP, 1995. 214
James Boyd White, Heracles' Bow: Essays on the rhetoric and poetics of law (Madison: Wisconsin UP, 1985).
. Justice as Translation (Chicago: Chicago UP, 1990).
Patricia Williams, The Alchemy of Race and Rights (Cambridge: Harvard UP, 1991).
Ronald Wilson, Bringing Them Home (Canberra: AGPS, 1997) at 2-4; 270-75.
Grading:
Reading quiz 15%; 3500 word take home exam, 30%; 3000 word essay, 35%; and class participation, 20%
Instructors: Professor Desmond Manderson, Canada Research Chair in Law and Rhetoric & Paul Yachnin, Tomlinson Professor of Shakespeare Studies
Course Title: The Shakespeare Moot Project
Works on current reading list:
Primary Works
Civil Code of Quebec, Article 1457.
Farwell v. Keaton, (1976) 396 Mich. 281; 240 N.W.2d 217 (Supreme Court of Michigan).
In Re Attorney General for Canada, ex parte Heinrich [judgments of Yachnin and Bristol JJ.].
In Re Attorney General for Canada, ex parte Heinrich [Statement of agreed facts, procedural history, rules of court, selected authorities].
Horsley v. MacLaren ("The Ogopogo'), [1972] S.C.R. 441.
McCulloch v. Maryland (1819), 4 Wheaton 316, online: http://usinfo.state.gov/usa/infousa/facts/democrac/10.htm
Osterlindv. Hill, (1928) 263 Mass. 73,160 NE 301 (Supreme Court of Massachusetts).
Re Section 24 of the BNA; Henrietta Muir Edwards et al v. Attorney General for Canada [1930] 1 D.L.R. 98. 215
Secondary Works
William J. Brennan, Jr., "The Constitution of the United-States: Contemporary Ratification" in Walter F. Murphy et al. "Originalism" in American Constitutional Interpretation, 2nd ed., (Westbury, New-York: Foundation Press, 1995), 236-243 [Lecture delivered at Georgetown University, Oct. 12, 1985; also published in (1986) 27 S. Tex. L.J. 433].
Robert Cover, "Nomos and Narrative" (1983) 97 Harvard Law Review 4.
Karen Cunningham, Imaginary Betrayals: Subjectivity and the Discourses of Treason in Early Modern England. (Philadelphia: Pennsylvania UP, 2002).
Cushman K. Davis, The Law in Shakespeare, 2nd ed. (St. Paul, Minn.: 1884).
Jacques Derrida, "Before the Law" in. Acts of Literature (New York: Routledge, 1992).
Ronald Dworkin, "Integrity in Law" in Ronald Dworkin Law's Empire (Cambridge, Mass.: Belknap Press, 1986), 225-239.
J. Dickinson, J. "Renaissance Equity and Measure for Measure" (1962) 13 Shakespeare Quarterly 287.
Lon Fuller, "Positivism and Fidelity to Law" (1958) 71 Harvard Law Review 630-672.
Peter Goodrich, "Law in the Courts of Love: Andreas Capellanus and the Judgments of Love" (1996) 48 Stan. L. Rev. 633.
Louise Halper, "Measure for Measure: Law, Prerogative, Submission" (2001) 13 Cardozo Stud, in L. & Lit. 221.
H.L.A. Hart, The Concept of Law (Oxford, Clarendon Press, 1961), 79-81, 91-103, 107- 108, 123-129, 136-41.
. "Positivism and the Separation of Law & Morals" (1958) 71 Harvard Law Review 593-629.
William M. Hawley, Shakespearean Tragedy and the Common Law: The Art of Punishment (New York: Lang, 1998).
Tony Honore, "Are Omissions Less Culpable?" in Peter Cane and Jane Stapleton, eds., Essays for Patrick Atiiyah (Oxford: Oxford UP, 1991) 31-52. 216
Constance Jordan, Shakespeare's Monarchies: Ruler and Subject in the Romances (Ithaca: Cornell UP, 1997).
Lindsay M. Kaplan & Katherine Eggert. '"Good Queen, My Lord, Good Queen': Sexual Slander and the Trials of Female Authority in The Winter's Tale." (1994) 25 Renaissance Drama 89-118.
Nicholas Kasirer, "Chronique de doctrine : Lear et le droit civil" (2000) 46 McGill L.J. 293.
Frank Kermode, "Justice and Mercy in Shakespeare" (1996) 33 Hous. L. Rev. 1155.
Daniel J. Kornstein, "Fie Upon Your Law!" (1993) 5.1 Cardozo Stud, in L. & Lit 35-56.
—. Kill All the Lawyers: Shakespeare's Legal Appeal (Princeton: Princeton UP, 1994).
Joel Levin, Joel. "Lear's Final Argument or More Sinned against than Sinning: Pride, Law, and Justice among the Ancients" in Roberta Kevelson, ed., The Eyes of Justice: Seventh Round Table on Law and Semiotics (New York: Lang, 1994).
Desmond Manderson, "In the tout court of Shakespeare: Interdisciplinary Pedagogy in law" (2004) 54 Journal of Legal Education 283.
Desmond Manderson and Paul Yachnin, "Love on Trial: Nature, Law, and Same-Sex Marriage in the Court of Shakespeare" (2004) 49 McGill Law J. 475.
Theodor Meron, Bloody constraint : war and chivalry in Shakespeare (New-York, Oxford University Press, 1998).
Walter F. Murphy et al. "Originalism" in Walter F. Murphy et al. American Constitutional Interpretation, 2nd ed., (Westbury, New-York: Foundation Press, 1995), 389-393.
Martha Nussbaum, "Poets as Judges" in Poetic Justice (Boston: Beacon Press, 1995).
Richard Posner, Law and Literature: A Misunderstood Relation (Cambridge, Mass.: Harvard University Press, 1988).
Antonin Scalia, "Originalism: The Lesser Evil" in Walter F. Murphy et al. "Originalism" in American Constitutional Interpretation, 2nd ed., (Westbury, New-York: Foundation Press, 1995), 231-236 [originally published in (1989) 57 U. Cinn. L. Rev. 849].
Richard J. Schoeck, "Shakespeare and the Law: An Overview" in W.R. Elton & John M. Mucciolo, The Shakespearean International Yearbook: Where are we now in Shakespearean Studies (Brookfield, USA: Ashgate, 1999). 217
Deborah Shuger, Political Theologies in Shakespeare's England: The Sacred and the State in Measure for Measure (Basingstoke: Palgrave, 2001).
Charles D. Spinosa, '"The Name and All th'Addition': King Lear's Opening Scene and the Common-Law Use" (1995) 23 Shakespeare Studies 146-86.
Richard Strier, "Faithful Servants: Shakespeare's Praise of Disobedience," in Heather Dubrow & Richard Strier, eds., The Historical Renaissance (Chicago, Chicago UP, 1988).
Ian Ward, Shakespeare and the Legal Imagination (London: Butterworths, 1999).
—. "Shakespeare and the Moral Law: Liberalism, Community, and the Idea of the Moral Self." (2000) 86 Archiv fur Rechts—und Sozialphilosophie 263-81.
—. "Shakespeare, the Narrative Community, and the Legal Imagination" in Michael Freeman & Andrew D.E. Lewis, eds. Law and Literature (Oxford: Oxford UP, 1999).
Richard Weisberg, "Then you shall be his surety: Oaths and Mediating Breaches in The Merchant of Venice" in Richard Weisberg, Poethics and Other Strategies of Law and Literature (New York: Columbia UP, 1992).
Luke Wilson, Theaters of Intention: Drama and the Law in Early Modern England (Stanford: Stanford UP, 2000).
Paul Yachnin, "Shakespeare and the Idea of Obedience: Gonzalo in The Tempest" (1991) 24: Mosaic 1.
Recommended Works:
Secondary Works
W.R. Elton & John M. Mucciolo, eds. The Shakespearean International Yearbook: Where are we now in Shakespearean Studies, (Brookfield, USA: Ashgate, 1999), 219.
Michael Freeman & Andrew D. E. Lewis, eds., Law and Literature (Oxford: Oxford UP, 1999), 117-48.
William M. Hawley, Shakespearean Tragedy and the Common Law: The Art of Punishment (New York: Lang, 1998).
George W. Keeton, Shakespeare and his Legal Problems (London; A. & C. Black, 1930). 218
. Shakespeare's Legal and Political Background (London: Pitman, 1967).
Daniel J. Kornstein, Kill All the Lawyers: Shakespeare's Legal Appeal (Princeton: Princeton UP, 1994).
Alexander Leggat, ed., Cambridge Companion to Shakespearean Comedy, (Cambridge: Cambridge University Press, 2002).
Joel Levin, "Lear's Final Argument or More Sinned against than Sinning: Pride, Law, and Justice among the Ancients" in Roberta Kevelson, ed., The Eyes of Justice: Seventh Round Table on Law and Semiotics (New York: Lang, 1994) 203-16.
William G. Meader, Courtship in Shakespeare (New-York: Octagon Books, 1971). Kostas Myrsiades & and Linda Myrsiades, eds. Vn-Disciplining Literature: Literature, Law, and Culture, (New York: Lang, 1999).
Owen Hood Phillips, Shakespeare and the Lawyers (London: Methuen, 1972).
Richard Posner, Law and Literature, (Cambridge: Harvard University Press, 1998).
Bruce L. Rockwood, "Shylock the Stranger: Looking Around for Justice or, More than Meets the Eye" in Roberta Kevelson, ed., The Eyes of Justice: Seventh Roundtable on Law and Semiotics (New York: Peter Lang, 1993) 251.
B.J. Sokol & Mary Sokol, Shakespeare's Legal Language: A Dictionary (London: Athlone, 2000).
Ian Ward, Shakespeare and the Legal Imagination (London: Butterworths, 1999).
Edward J. White, Commentaries on the Law in Shakespeare: With Explanations of the Legal Terms Used in the Plays, Poems, and Sonnets and a Consideration of the Criminal Types Presented. Also a Full Discussion of the Bacon-Shakespeare Controversy (Littleton: Rothman, 1987).
Objectives:
In this collaborative interdisciplinary seminar, led by Desmond Manderson (Law) and Paul Yachnin (English), students from Law and graduate students from English will team up to argue cases in the "Court of Shakespeare" (i.e., where the sole Institutes, Codex, and Digest, is comprised by the plays of William Shakespeare). The overall aims of the project are to:
(a) provide an organic and responsive model for the ways in which resources to articulate social values can be developed; 219
(b) explore the ways in which traditions of legal and textual interpretation are created, grown, and modified;
(c) offer new insights into the normative implications of a body of work of supreme cultural significance;
(d) explore the particular nature of Shakespeare's drama, and of literature generally, as an expressive register of normative social values;
(e) consider how literature and literary thinking might influence and might have already influenced law and legal thinking.
Pairing law students with graduate scholars in literature, the project is intended to allow a depth of connection between the discourses of law and the humanities that is rarely achieved. Law and English students will learn about the processes of reasoning and analysis in the other discipline, and they will come to appreciate the cultural imbrications of these forms. At the same time, students will develop their skills of argument in a new and challenging context.
The students who participate in the Shakespeare Moot Project will find themselves at a rare moment of unfettered creativity. They will not only study the emergence and nature of a legal system. They will be making one. This is especially the case because the participants will create the precedents from which the future legal system will continue to grow.
Grading:
Student are assessed on collaborative work receiving a letter grade: E(xcellent), V(ery) G(ood), G(ood), F(air), U(nsatisfactoy). These grades are scaled differently for English and Law students in order to reflect the grading standards appropriate to each discipline.
Universite de Moncton No
Universite de Montreal No
University of New Brunswick No
Note: The University of New Brunswick Law School did offer a course in Law and Popular culture previously during the 2003-2004 academic year under the instruction of Prof. Steven Penney.
University of Ottawa (Civil law section) No 220
University of Ottawa (Common law section) Yes
Instructor: Professor Elizabeth Judge
Course Title: Law and Literature
Course Objectives:
This seminar course will draw connections between law and literature, by examining how the legal process and justice is represented in literature, by comparing legal and literary modes of Interpretation, and by considering how law regulates literature. The course looks at different ways of knowing, questioning and judging law and literature, by exploring how law and literature, respectively, interpret, evaluate, and define literature as a legal object and law as a literary subject.
The study of Law and Literature aspires to several goals: using literature to engender sympathy in lawyers and an understanding of difference by entering other people's stories and points of view and emphasizing emotion and intuition; using literature to bring humanism and ethics in law; using narrative theory to improve writing and analysis and close critical reading; exposing law students to notable, memorable and great writing to improve legal writing and communication with clients and legal institutions; using literary criticism and theory to improve interpretation; using literary techniques such as point of view, narrative theory, and critical theories such as feminism, post-colonialism, and new historicism to illuminate our reading of law and legal texts; studying legal texts, including reasons for judgment, constitutions, statutes and regulations, as literary texts with their own style, rhetorical practices, and generic presuppositions, audience expectations, and interpretive communities; treating the interaction of law and literature as a pedagogical forum for discussion of issues of judgment, justice, punishment, and law; and exposure to persuasive narratives and storytelling.
Interdisciplinary scholarship, as the literary critic Linda Hunt has recommended, should respect the disciplines at the same time as it invites conversation across the disciplinary boundaries. Each group, she writes, must be committed to learn the language of the other, and the "best interdisciplinary work produces its effects back in the various disciplines that it crosses rather than creating an altogether new and different interstitial space." This course will look at how "law" and "literature" raise different questions about each other and have different approaches for answering those questions. What can law and literature say to each other? What are the questions each discipline poses? What answers does each discipline provide? Some questions that the seminar will discuss include, what does law think it knows about literature; what does law want to know about literature; what should law seek to know and to question about literature; what assumptions does the law make about literature that literary experts would question; what expectations do legal professions bring to literary texts; what are the legal assumptions about literary genres and aesthetic norms; what assumptions about law do authors make; and how do law and literature define originality, authorship, and merit? 221
Readings will include novels, plays, short stories, poems, cases, and interdisciplinary law and literature scholarship. The course will discuss how legal representation, legal ethics, professionalism, advocacy, justice, the legal process and law reform is evaluated by literature. The readings will raise critical questions about story telling and narrative within the trial and in literature. The seminar will use narrative and literary theory to examine key legal documents. The course will also look at how law has regulated literature and authors (such as through obscenity and copyright law).
University de Quebec a Montreal No
Queen's University Yes
Instructor: Professor Mark Weisberg
Course Title: The Legal Imagination
Works on current reading list:
Primary Works
James Boyd White, The Legal Imagination: Studies in the Nature of Legal Thought and Expression (Boston: Little Brown, 1973).
Recommended Readings
Secondary Works
Joseph Williams, Style: Ten Lessons in Clarity and Grace, 9th ed. (New York: Longman, 2006). 222
Instructor: Professors Jackie Duffin and Mark Weisberg
Course Title: Images of Doctors and Lawyers in Literature
Works on current reading list:
Primary Works
Louis Auchincloss, "Equitable Awards" in Narcissa and Other Fables (Boston: Houghton Mifflin, 1932).
. "The Fabbri Tape" in Narcissa and Other Fables (Boston: Houghton Mifflin, 1932).
. "Fat Lady" in Narcissa and Other Fables (Boston: Houghton Mifflin, 1932).
Atul Gawande, "What Doctors Owe" in Better: A Surgeon's Notes on Performance (Henry Holt & Co., 2007).
Susan Glaspell, A Jury of Her Peers (1917).
William Grenfell, "Adrift on an Ice Pan" in The Best of William Grenfell (1909).
Perri Klass, "Learning the Language" in A Not Entirely Benign Procedure (New York: G.P. Putnam, 1987) at 73.
. "Macho" in A Not Entirely Benign Procedure: Four Years as a Medical Student (New York: G.P. Putnam, 1987) at 79.
Mah, "Gantarro Tower" in (2003) 27:1 L. Stud. Forum 371.
J.S. Marcus, "Centaurs" in Legal Fictions (Woodstock, N.Y.: Overlook Press, 1992) at 97.
Richard Selzer, "Brute" in Letters to a Young Doctor (New York: Simon & Schuster, 1982) at 60.
. "Fetishes" in Letters to a Young Doctor (New York: Simon & Schuster, 1982) at 98.
Abraham Verghese, The Tennis Partner (New York: Harper Collins, 1998).
William Carlos Williams, "The Use of Force" in The Doctor Stories (1932).
Irvin Yalom, "Fat Lady" in Love's Executioner (1989). 223
University of Saskatchewan Yes
Instructor: Professor Isobel M. Findlay
Course Title: Law and Culture
Works on current reading list:
Primary Works
Joel Bakan, The Corporation: The Pathological Pursuit of Profit and Power (Toronto: Viking, 2004).
Canada, Royal Commission on Aboriginal Peoples, (Ottawa: 1996).
R. v. Delgamuukw, [1997] 3 S.C.R. 1010.
R. v. Gladue, [1999] 1 S.C.R. 688.
R. v. Lavallee, [1990] 1 S.C.R. 61.
R. v. Van der Peet, [1996] 2 S.C.R. 507.
Donna E. Smyth, "Red Hot" in Among the Saints: Collected Stories (Black Point, N.S.: Roseway Publishing, 2003).
Rudy Wiebe & Yvonne Johnson, Stolen Life: The Journey of a Cree Woman (Toronto: Knopf, 1998).
The class includes a variety of readings spanning non-fiction and fiction as well as primary legal documents and examples of found literatures. The course also includes one week where a movie selected by the class is shown.
Secondary Works
Carol A. Aylward, Critical Race Theory: Racism and the Law (Halifax: Fernwood, 1999).
John Borrows, "'Landed' Citizenship: An Indigenous Declaration of Interdependence" in Recovering Canada: The Resurgence of Indigenous Law (Toronto: Toronto UP, 2002).
Erica-Irene Daes, "Prologue: The Experience of Colonization around the World" in Marie Battiste, Reclaiming Indigenous Voice and Vision (Vancouver: UBC Press, 1996) 3. 224
Ross Gordon Green & Kearney F. Healy, "Crime and Punishment: Getting Tough on Youth Crime" in Tough on Kids: Rethinking Approaches to Youth Justice (Saskatoon: Purich Publishing, 2003).
J.S.Y. Henderson, M.L. Benson, and I.M. Findlay, "A History of Colonial Reasoning: Dualism, Diffusion, and Difference" in Aboriginal Tenure in the Constitution of Canada (Toronto: Carswell, 2000).
Frances Henry and Carol Tator, "Review of the Canadian Literature on Racism in the Print Media" in Discourses of Domination: Racial Bias in the Canadian English- Canadian Language Press (Toronto: Toronto UP, 2002) at 39. bell hooks, Cultural Criticism and Transformation (video) (1996)
Patricia Monture-Angus, "Myths and Revolution: Thoughts on Moving Justice Forward in Aboriginal Communities" in Thunder in My Soul: A Mohawk Woman Speaks (Halifax: Fernwood, 2003) 249-264.
Njabulo S. Ndebele, "Guilt and Atonement: Unmasking History for the Future" in South African Literature and Culture: Rediscovery of the Ordinary (Manchester: Manchester UP, 1994).
Mona Oikawa, "Cartographies of Violence: Women, Memory, and the Subjects of the 'Internment'" in Sherene Razack Race, Space, and the Law (Toronto: Between the Lines, 2002).
Laureen Snider, "Relocating Law: Making Corporate Crime Disappear" in E. Comack, ed. Locating Law: Race/Class/Gender Connections (Halifax: Fernwood Publishing, 1999).
K.White-Mair, "Experts and Ordinary Men: Locating R. v. Lavallee, Battered Woman Syndrome, and the 'New' Psychiatric Expertise on Women within Canadian Legal History" (2000) 12:1 Can. J. Women and L. 406.
Patricia Williams, "Crimes Without Passion" in The Alchemy of Race and Rights (Cambridge: Harvard UP, 1991) at 80.
Recommended readings:
Objective:
"The course is designed (a) to develop research and writing skills through preparation of a major research paper; (b) to familiarize students with the ways in which law and culture intersect in history and theory. In exploring this material, students will enhance their 225 critical understanding of the independence and interdependence of law and justice. By bringing together the presuppositions of different disciplines, the course will establish the ways in which law affirms, extends, reclaims, or shares authority. We will discuss cultural and communications theory and practice; issues of race, gender, class, commodification; oppression, agency, and accountability; the roles of popular culture and mass media; cultural myths and narrative power."
Grading:
Seminary participation, 30%; and major research paper (35 pages), 80%
Universite de Sherbrooke No
University of Toronto Yes
Instructor: Professor Simon Stern
Course Title: Law & Literature
Works on current reading list:
Primary Works
Owen Barfield, aka G.A.L. Burgeon, This Ever-Diverse Pair (London: Gollancz, 1950)
A. Conan Doyle, "Silver Blaze" (1892)
. "A Question of Identity" (1891) Washington Irving, "The Mutability of Literature" in The Sketch Book of Geoffrey Crayon (1819-1820) . "The Art of Bookmaking" in The Sketch Book of Geoffrey Crayon (1819-1820)
Herman Melville, "Fast-Fish Loose Fish" in Moby Dick (1851)
. "Bartleby the Scrivener" (1853) Pierson v. Post (1805), 2 Am. Dec. 264 (S.C.N.Y.).
Pope v. Curll (1741), 2 Atk. 342, 2 Eng. Rep. 608. 226
James Salter, "American Express" (1989)
Saronyv. Burrow-Giles Lithographic (1884) 111 U.S. 53 (U.S.S.C.).
Robert Louis Stevenson, The Strange Case of Dr. Jekyll and Mr. Hyde (1887)
Steph Tai, For Ellen, Who Will Be Thirty-Two in June (2008)
Oscar Wilde, The Picture of Dorian Gray (1890/91)
"The Portrait of Mr. W.H." (1891)
Secondary Works
Jane B. Baron, "Law, Literature and the Problems of Interdisciplinarity" (1999) 108 Yale L.J. 1059-1085.
Maxwell Bloomfield, "Law and Lawyers in American Popular Culture," in Carl S. Smith, John Mc Williams & Maxwell Bloomfield eds., Law and American Literature (New York: Knopf, 1983), pp. 125-48.
Louis D. Brandeis & Samuel D. Warren, "The Right to Privacy" (1890) 4 Harvard L.Rev. 193-220.
Peter Brooks, '"Inevitable Discovery' - Law, Narrative, Retrospectivity" (2003) 15 Yale Journal of Law & the Humanities 71-101.
Guido Calabresi, "Introductory Letter" (1988) 1:1 Yale J. L. & Human, vii.
James Chandler, England in 1819: The Politics of Literary Culture and the Case of Romantic Historicism (Chicago: Chicago UP, 1998).
Joel Peter Eigen, "Double Consciousness in the Nineteenth Century" in Joel Peter Eigen Unconscious Crime: Mental Absence and Criminal Responsibility in Victorian London (Baltimore: Johns Hopkins UP, 2003) 15-34.
Robert A. Ferguson, "The Judicial Opinion as Literary Genre" (1990) 2 Yale J.L. & Human. 201-19.
Stanley Fish, "The Law Wishes to Have a Formal Existence," in Stanley Fish, There's No Such Thing as Free Speech and It's a Good Thing Too (Oxford: Oxford UP, 1994) 141-79.
Owen M. Fiss, "The Challenge Ahead" (1988) 1:1 Yale J. L. & Human, viii. 227
Lon L. Fuller, Legal Fictions (Stanford: Stanford UP, 1967).
David Herman, Story Logic (Lincoln: Nebraska UP, 2005).
David Howarth, "Is Law a Humanity (or is it more like Engineering)?" (2004) 3 Arts & Humanities in Education 9-20.
Bernard S. Jackson, "Narrative Models in Legal Proof (1988) 1 International Journal of Semiotics & Law 225-46.
Peter Jaszi, "Toward a Theory of Copyright: The Metamorphoses of 'Authorship'" (1991) 41 Duke L.J.. 455-502.
Elizabeth Judge, "Law and the Victorian Novel," in William Baker & Kenneth Womack, eds., A Companion to the Victorian Novel (Westport, Conn.: Greenwood, 2002) 123-35.
Suzanne Keen, "A Narrative Theory of Empathy" (2006) 14 Narrative 207-36.
John Leubsdorf, "The Structure of Judicial Opinions" (2001) 86 Minnesota L.Rev. 447- 96.
"Note from the Editors" (1988) 1:1 Yale J. L. & Human, v.
Nancy Pennington & Reid Hastie, "A Cognitive Theory of Juror Decision Making: The Story Model" (1992) 13 Cardozo L. Rev. 519-57.
Julie Stone Peters, "Law, Literature, and the Vanishing Real: On the Future of an Interdisciplinary Illusion" (2005) 120 PMLA 442-53.
David Punter, "Fictional Representation of the Law in the Eighteenth Century" (1982) 16 Eighteenth-Century Studies 47-74.
Annelise Riles, "A New Agenda for the Cultural Studies of Law: Taking on the Technicalities" (2005) 53 Buffalo L. Rev. 973-1033.
Paul H. Robinson, "A Brief History of Distinctions in Criminal Culpability" (1980) 31 Hastings L.J. 815-53. Mark Rose, Authors and Owners: The Invention of Copyright (Cambridge: Harvard UP, 1994).
Alf Ross, "Legal Fictions," in Law, Reason, and Justice (New York: NYUP, 1969), pp. 217-33.
Aviam Soifer, "Reviewing Legal Fictions" (1986) 20 Georgia L.Rev. 871-915. 228
Simon Stern, "Literary Evidence and Legal Aesthetics" (forthcoming 2008).
"Tenth Anniversary Symposium," (1998) 10 Yale J. L. & Human. 389-420.
David Velleman, "Narrative Explanation" (2003) 112 Philosophical Rev. 1-25..
Richard H. Weisberg, Poethics and Other Strategies of Law and Literature (New York: Columbia, 1991).
James Boyd White, Acts of Hope: Creating Authority in Literature, Law, and Politics (Chicago: Chicago UP, 1994).
R.S. White, "Law and Literature in Sixteenth-Century England," in R.S. White, Natural Law in Renaissance Literature (Cambridge: Cambridge UP, 1996) 72-106.
Martha Woodmansee, "The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the 'Author'" (1984) 17 Eighteenth-Century Studies 425-48.
Recommended readings:
Primary works
Willa Cather, Paul's Case (1906)
James Hogg, The Private Memoirs and Confessions of a Justified Sinner (1824)
Melville Davisson Post, The Strange Schemes of Randolph Mason (1896)
Entickv. Carrington (1765), 19 St. Tr. 1029.
Old Chief v. United States (1997), 519 U.S. 172.
R. v. Rose (1998), 20 C.R. (5th) 246 (S.C.C.).
Secondary Works
Rosalie Silberman Abella, "Law, Literature, and Identity" (2000) 63 Sask. L.Rev. 1-28.
Kenneth S. Abraham, "Statutory Interpretation and Literary Theory: Some Common Concerns of an Unlikely Pair" (1979) 32 Rutgers L.J. 676-94.
Rob Atkinson, "What Is It Like to be Like That: The Progress of Law and Literature's 'Other' Project" online: Social Science Research Network
J.H. Baker, "Lecture Two: Legal Fictions" The Law's Two Bodies: Some Evidential Problems in English Legal History (Oxford: Oxford UP, 2001) 33-57.
J.M. Balkin, Cultural Software: A Theory of Ideology (New Haven: Yale UP, 1998).
Anne Banfield, Unspeakable Sentences: Narration and Representation in the Language of Fiction (London: Routledge and Kegan Paul, 1982).
Pamela Barmash, "The Narrative Quandary: Cases of Law in Literature" (2004) 54 Vetus Testamentum 1.
Jane B. Baron, "Interdisciplinary Scholarship as Guilty Pleasure: The Case of Law and Literature" in Michael Freeman & Andrew Lewis, eds., Law and Literature: Current Legal Issues 2nd ed. (London: Oxford UP, 1999) at 21-45.
Marie-Claire Belleau & Rebecca Johnson, "I Beg to Differ: Interdisciplinary Questions about Law, Language and Dissent" (Toronto: Toronto UP, forthcoming 2007).
Guyora Binder & Robert Weisberg, Literary Criticisms of Law (Princeton UP, 2000).
Edgar Janes Bliss, The Peril of Oliver Sargent (New York: C.W. Webster, 1891).
David A. Brewer, The Afterlife of Character, 1726-1825 (Philadelphia: Pennsylvania UP, 2005).
Peter Brooks, "Illicit Stories" (1995) 25 Diacritics 41-51.
Peter Brooks & Paul Gewirtz, eds., Law's Stories (New Haven: Yale UP, 1996).
Jerome Bruner, "The Legal and the Literary" (2002) 90 Yale Rev. 42-61.
Benjamin N. Cardozo, "Law and Literature," in Law and Literature and Other Essays and Addresses (New York: Harcourt, 1931) 3-40.
Robert Caserio, "Supreme Court Discourse vs. Homosexual Fiction" (1989) 88 South Atlantic Quarterly 267-99.
J. Edward Chamberlin, "Culture and Anarchy: Truthtelling in Oral and Written Traditions" (Toronto: Faculty of Law, U of Toronto, 1996).
Greg Clingham, Johnson, Writing, and Memory (Cambridge: Cambridge UP, 2002) 60- 88.
John M. Conley & William M. O'Barr, Just Words: Law, Language, and Power (Chicago: Chicago UP, 2d ed., 1997). 230
Rosemary Coombe, The Cultural Life of Intellectual Properties: Authorship, Appropriation, and the Law (Duke UP, 1998).
Bradin Cormack, "Practicing Law and Literature in Early Modern Studies" (2003) 101 Modern Philology 79-91.
. A Power To Do Justice: Jurisdiction and Sovereignty in English Literature 1509- 1625 (forthcoming 2008).
Stanley A. Cohen, "The Paradoxical Nature of Privacy in the Context of Criminal Law and the Canadian Charter of Rights and Freedoms" (2002) 7 Canadian Criminal L.Rev. 125-45.
Randall Craig, "Fictional License: The Case of (and in) Great Expectations" (2005) 35 Dickens Studies Annual 109-32.
Gregg Crane, "The Path of Law and Literature" (1997) 9 American Literary History 758- 74.
Nicholas Dames, Amnesiac Selves: Nostalgia, Forgetting, and British Fiction 1810-1870 (Oxford: Oxford UP, 2001).
Ronan Deazley, On the Origin of the Right to Copy: Charting the Movement of Copyright Law in Eighteenth-Century Britain (1695-1775) (Oxford: Hart, 2004).
Richard Delgado, "Storytelling for Oppositionists: A Plea for Narrative" (1989) 87 Michigan L.Rev. 2411 -41.
Michael Dorland, Law, Rhetoric, and Irony in the Formation of Canadian Civil Culture (Toronto: Toronto UP, 2002).
Kathy Eden, Poetic and Legal Fictions in the Aristotelian Tradition (Princeton: Princeton UP, 1986).
David Fagundes, "Note, What We Talk about When We Talk about Persons: The Language of a Legal Fiction" (2001) 114 Harvard L.Rev. 1745-68.
Daniel A. Farber & Suzanna Sherry, "Telling Stories out of School: An Essay on Legal Narratives" (1995) 45 Stanford L.Rev. 807-55.
Margot Finn, "Victorian Law, Literature, and History: Three Ships Passing in the Night" (2002) 7 Journal of Victorian Culture 134-46.
Mitchell A. Flagg, "Star Crazy: Keeping the Right of Publicity out of Canadian Law" (1999) 13 International Property Journal 179:236. 231
Winfiied Fluck, "Fiction and Justice" (2003) 4 New Literary History 19-42.
Monika Fludernik, The Languages of Fiction and the Fictions of Language (London: Routledge, 1995).
David P. French, "The Swift-Gulliver Litigation" (1964) 11 Notes and Queries 52-53.
Donald William Fyson, Magistrates, Police and People: Everyday CriminalJustice in Quebec and Lower Canada, 1764-1837 (Toronto: Osgoode Society, 2006).
Peter Goodrich, Legal Discourse: Studies in Linguistics, Rhetoric, and Legal Analysis (New York: St. Martin's Press, 1987).
Kathryn Gravdal, "The Complicity of Law and Literature" in Gravdal, Ravishing Maidens: Writing Rape in Medieval French Law and Literature (Philadelphia: Pennsylvania UP, 1991) 122-40.
Jody Greene, "Public Secrets: Sodomy and the Pillory in the Eighteenth Century and Beyond" (2003) 44 Eighteenth Century: Theory and Interpretation 203-232.
. The Trouble with Ownership: Literary Property and Authorial Liability in England, 1660-1730 (Philadelphia: Pennsylvania UP, 2005).
Thomas C. Grey, The Wallace Stevens Case: Law and the Practice of Poetry (Cambridge: Harvard UP, 1991).
Jonathan Grossman, The Art of Alibi: English Law Courts and the Novel (Baltimore: Johns Hopkins UP, 2002).
Michael Hancher, "Littera scripta manet: Blackstone and Electronic Text" (2004) 54 Studies in Bibliography 115-32.
Kevin Jon Heller, "The Cognitive Psychology of Circumstantial Evidence" (2006) 105 Michigan L.Rev. 241-305.
David Herman, Story Logic (Lincoln: Nebraska UP, 2005).
Todd Herzog, "Crime Stories: Criminal, Society, and the Modernist Case History" (2002) 80 Representations 34-61.
Lesley Higgins & Marie-Christine Leps, "'Passport, Please': Legal, Literary, and Critical Fictions of Identity" (1998) 25 College Literature 94-138.
Lorna Hutson, "Forensic Aspects of Renaissance Mimesis" (2006) 94 Representations 80-109. 232
Alan Hyde, Bodies of Law (Princeton: Princeton UP, 1997).
Bernard S. Jackson, "Narrative Models in Legal Proof (1988) 1 International Journal of Semiotics & Law 225-46.
Albert R. Jonsen & Stephen Toulmin, The Abuse of Casuistry: A History of Moral Reasoning (Berkeley: California UP, 1988).
Michael P Jordan, "The Evolution of the Genre of Canadian Acts: Sentence Structure and Complexity" (1995)12 Technostyle 117-43.
Elizabeth Judge, "Eighteenth Century Fan Fiction and Copyright Law" online: Case Western Reserve University Centre for Law, Technology & the Arts
Anthony Julius, "Dickens the Lawbreaker" (1998) 40 Critical Quarterly at 43-66.
Peter Karsten, Between Law and Custom: "High " and "Low" Legal Cultures in the Lands of the British Diaspora—the United States, Canada, Australia, and New Zealand, 1600-1900 (Cambridge: Cambridge UP, 2002).
Suzanne Keen, "A Narrative Theory of Empathy" (2006) 14 Narrative 207-36.
Dennis R. Klinck, The Word of the Law: Approaches to Legal Discourse (Ottawa: Carleton UP, 1992).
Reinhold Kramer, "Section 8 of the Charter and English-Canadian Fiction" (1998) 78 Dalhousie Review 385-413.
Christine L. Kreuger, "Legal Uses of Victorian Fiction" in Kreuger, ed., Functions of Victorian Culture at the Present Time (Athens, Oh: Ohio UP, 2003) at 115-133.
Dominic LaCapra, Madame Bovary on Trial (Ithaca: Cornell UP, 1982).
John Langbein, The Origins of Adversary Criminal Trial (Oxford: Oxford UP, 2003).
Joan Lovisek, "Transmission Difficulties: The Use and Abuse of Oral History in Aboriginal Claims" in H.C. Wolfart, ed., Papers of the Thirty-Third Algonquian Conference (Winnipeg: Manitoba UP, 2002) 251-70.
Steven Lubet, "Story Framing" (2001) 74 Temple L.Rev. 59-67.
C. Michael Macmillan, "Judicial Activism vs. Judicial Restraint: The Role of the Highest Courts in Official Language Policy in Canada and the United States" (2003) 33 American Review of Canadian Studies 239-60. 233
Desmond Manderson, "From Hunger to Love: Myths of the Source, Interpretation, and Constitution of Law in Children's Literature" (2003) 15 Cardozo Stud, in L. & Litt. 87.
Michael Meehan, "Authorship and Imagination in Blackstone's Commentaries on the Laws of England' (1992) 16 Eighteenth-Century Life 111-26.
Mitchell Meltzer, Secular Revelations: The Constitution of the United States and Classic American Literature (Cambridge: Harvard UP, 2005).
Bernadette Meyler, Book Review of The Myth of Law and Literature by Thane Rosenbaum (December 29, 2005) online: Cornell Law School, Cornell Law School Legal Studies Research Paper Series
William Ian Miller, Bloodtaking and Peacemaking: Feud, Law, and Society in Saga Iceland(Chicago: Chicago UP, 1990).
Charles C. Moore, A Treatise on Facts, or, The Weight and Value of Evidence (Northport, Long Island, New York: E. Thompson, 1908), 2 vols.
Ed Morgan, "The Crying of Rule 49" (2004) 54 Univ. of Toronto L.J. 45- 74. Anthony Musson, ed., Boundaries of the Law: Geography, Gender, and Jurisdiction in Medieval and Early Modern Europe (London: Ashgate, 2005).
Deborah Nelson, Pursuing Privacy in Cold War America (New York: Columbia UP, 2002).
Joshua A. Newberg, "The Narrative Construction of Antitrust" (2003) 12 S.Cal. Interdisciplinary L.J. 181-216.
Robert Newsom, A Likely Story: Probability and Play in Fiction (New Brunswick: Rutgers UP, 1988).
Shannon K O'Byrne, "Legal Criticism as Storytelling" (1992) 23 Ottawa L.Rev. 487- 503.
C.K. Ogden, Bentham's Theory of Fictions (Patterson, NJ: Littlefield, Adams & Company, 1959).
Roy Pascal, The Dual Voice: Free Indirect Speech and Its Functioning in the Nineteenth- Century European Novel (Manchester: Manchester UP, 1977).
Simon Petch, "Law, Literature, and Victorian Studies" (2007) 35 Victorian Literature and Culture 361.
. "Legal" in Herbert F. Tucker, A Companion to Victorian Literature (Oxford: 234
Blackwell, 1999) 155-69.
Clare Pettit, "Legal Subjects, Legal Objects: The Law and Victorian Fiction," in Francis 0"Gorman, A Concise Companion to the Victorian Novel (Blackwell, 2004) 71-90.
Robert C. Post, "Rereading Warren and Brandeis: Privacy, Property, and Appropriation" (1991) 41 Case Western L.Rev. 647-80.
James Ram, A Treatise on Facts as Subjects of Inquiry by a Jury (New York: Baker Voohis, 1870). ,
John R. Reed, "Laws, the Legal World, and Politics" in Patrick Brantlinger, ed., A Companion to the Victorian Novel (Blackwell, 2005).
Charles A. Reich, "Towards the Humanistic Study of Law" (1964) 74 Yale LJ. 1402- 1408.
Ravit Reichman, "Making a Mess of Things: The Trifles of Legal Pleasure" (2005) 1 Law, Culture & the Humanities 14-34.
Lisa Rodensky, The Crime in Mind: Criminal Responsibility and the Victorian Novel (Oxford: Oxford UP, 2003).
Lawrence Rosen, Law as Culture (Princeton: Princeton UP, 2006).
Gary Rosenshield, The Uses and Abuses of Narrative Empathy: Dostoevsky and the Jury Trial (Toronto: Faculty of Law, U. of Toronto, 2004).
R.J. Schoeck, "Shakespeare and the Law: An Overview" in W.R. Elton, ed., Where Are We Now in Shakespearean Studies? (London: Aldershot, 1999), pp. 219-39.
Jan-Melissa Schramm, "Is Literature More Ethical Than Law?: Fitzjames Stephen and the Literary Responses to the Advent of Full Legal Representation for Felons" in Michael Freeman & Andrew Lewis, eds., Law and Literature: Current Legal Issues 2nd ed. (London: Oxford UP, 1999) at 21-45.
Robert Scholes, Structuralism in Literature (New Haven: Yale UP, 1974) 42-50 (excerpt on Andre Jolles).
Gerald T.G. Seniuk, "Liars, Scoundrels, and the Search for Truth" (2000) 30 Criminal Reports (5th series) 244-54.
Richard K. Sherwin, "Law Frames: Historical Truth and Narrative Necessity in a Criminal Case" (1994) 47 Stanford L.Rev. 39-84. 235
Roger Shuy, Language Crimes (Cambridge: Blackwell, 1993).
Kenneth W. Simons, "Rethinking Mental States" (1992) 72 Boston Univ. L.Rev. 463- 554.
David Skeel, "Point-Blank Verse" (2005) Sept/Oct Legal Affairs 56-60.
William E. Smyth, "On the Psychology of 'As If,'" (2005) 15 Theory & Psychology 283.
Lawrence M. Solanence and Peter M. Tiersma, Speaking of Crime: The Language of Criminal Justice (Chicago: Chicago UP, 2004).
Emily Steiner and Candace Barrington, eds., The Letter of the Law: Legal Practice and Literary Production in Medieval England (Ithaca: Cornell UP, 2002).
James Fitzjames Stephen, "The License of Modern Novelists" (1857) 106 Edinburgh Rev. 124-56.
. "The Relation of Novels to Life," in Cambridge Essays (London: John W. Parker & Son, 1855) 148-92.
Simon Stern, "Tom Jones and the Economies of Copyright" (1997) 9 Eighteenth-Century Fiction 429-44.
Nomi Stolzenberg, "Bentham's Theory of Fictions - 'A Curious Double Language'" (1999) 11 Cardozo Studies in Law & Literature 223-49.
Marjorie Stone, "Dickens, Bentham, and the Fictions of the Law: A Victorian Controversy and Its Consequences" (1985) 29 Victorian Studies 125-54.
Jeannie Suk, "Note, Originality" (2002) 115 Harvard L.Rev. 1988-2009.
Jonathan Swainger & Constance Backhouse, eds., People and Place: Historical Influences on Legal Culture (Vancouver: UBC Press, 2003).
Richard G. Swartz, "Patrimony and the Figuration of Authorship in the Eighteenth- Century Literary Property Debates" (1989) 7 Works and Days 29-54.
Hans Vaihinger, The Philosophy of "As If (1911) translated by C.K. Ogden (New York: Harcourt Brace, 1924).
Joseph Vining, Legal Identity: The Coming of Age of Public Law (New Haven: Yale UP, 1978). 236
Kendall Walton, Mimesis as Make-Believe: On the Foundations of the Representational Arts (Cambridge: Harvard UP, 1993).
Richard H. Weisberg, The Failure of the Word: The Protagonist as Lawyer in Modern Fiction (New Haven: Yale UP 1984).
. "Family Feud: A Response to Robert Weisberg on Law and Literature" (1988) 1:1 Yale J.L. and Human 69.
Robert Weisberg, "The Law-Literature Enterprise" (1988) 1:1 Yale J.L. & Human. 17.
Alexander Welsh, Strong Representations: Narrative and Circumstantial Evidence in England (Baltimore: Johns Hopkins UP, 1992).
Robin West, Narrative, Authority, and Law (Ann Arbor: Michigan UP, 1994).
Kenji Yoshino, "The City and the Poet" (2005) 114 Yale L.J. 1835-96.
Grading:
Class participation, 10%; two short response papers, 10%; and 20-25 page term paper,
80%
Instructor: Professor Simon Stern
Course Title: Legal Mysteries
Works on current reading list:
Primary Works
Eric C. Bentley, Trent's Last Case (1913)
Arthur Conan Doyle, "Silver Blaze" (1892)
______"The Speckled Band" (1892)
, "The Blue Carbuncle" (1892)
R. Austin Freeman, "The Mysterious Visitor" (1924)
Edgar A. Poe, "The Murders in the Rue Morgue" (1841) 237
Melville Davisson Post, The Strange Schemes of Randolph Mason (1896).
. The Doomdorf Mystery (1912).
Scott Turow, Presumed Innocent (1990)
Secondary Works
Jerome E. Bickenbach and Clifford Ian Kyer, "The Harvardization of Cecil Wright," (1983) 33 Univ. Toronto LJ. 162-83.
Roger Callois, "The Detective Novel as Game," in Glenn W. Most & William W. Stowe, eds., The Poetics of Murder (New York: Harcourt Brace Jovanovich, 1983) 1-12.
Leah Christensen, "Legal Reading and Law School Success: An Empirical Study" (2007) 30 Seattle University L. Rev. 603.
Robert A. Ferguson, "The Judicial Opinion as Literary Genre," (1990) 2 Yale J.L. & Human. 210.
Catherine Gallagher, "The Rise of Fictionality" in Franco Moretti, The Novel: Volume 1 History, Geography, and Culture at 336 (Princeton: Princeton UP, 2006).
Carlo Ginzburg, "Clues: Roots of an Evidential Paradigm," in Myths, Emblems, Clues (London: Hutchinson, 1990), 96-125.
Thomas C. Grey, "Langdell's Orthodoxy" (1983) 45 U. of Pitt. L. Rev. 1-53.
Chris Guthrie, Andrew J. Wistrich, & Jeffrey J. Rachlinski, "Judicial Intuition" (unpublished, presented at Berkeley conference on Law and the Emotions, Feb. 2007).
Thomas Halper, "Logic in Judicial Reasoning," (1968) 44 Indiana L.J. 33-48.
John A. Hodgson, "The Recoil of 'The Speckled Band': Detective Story and Detective Discourse" (1992) 13 Poetics Today 309-24.
Hans Hoeken & Mario van Vliet, "Suspense, Curiosity, and Surprise: How Discourse Structure Influences the Affective and Cognitive Processing of a Story" (2000) 26 Poetics 277-86.
Dan Hunter, "No Wilderness of Single Instances: Inductive Inference in Law" (1998) 48 J. of Legal Educ 365. 238
Joseph C Hutchinson, Jr., "The Judgment Intuitive: The Function of the 'Hunch' in Judicial Decision" (1928) 14 Cornell L. Q. 274-88.
S. Knoblock-Westerwick & Caterina Keplinger, "Mystery Appeal: Effects- of Uncertainty and Resolution on the Enjoyment of Mystery" (2006) 8 Media Psychology 193-212.
Ronald A. Knox, "A Detective Story Decalogue" (1929) in Howard Haycraft, The Art of the Mystery, (New York: S. & S., 1946) 194-96.
J.B. Mackenzie, "Sherlock Holmes' Plots and Strategy" (1902) 14 Green Bag 407-11.
Franco Moretti, "The Slaughterhouse of Literature" (2000) 61 Mod. Lang Quart. 207-27.
. "Clues" in Franco Moretti et al. Signs Taken for Wonders: Essays in the Sociology of Literary Forms (London: Verso, 1983), 131-156. Dennis Porter, The Pursuit of Crime: Art and Ideology in Detective Fiction (New Haven: Yale UP, 1981).
Charles Rzepka, "What Is Detective Fiction?" in Detective Fiction (Cambridge: Polity, 2005), 9-31.
Howard Schweber, "The 'Science' of Legal Science: The Model of the Natural Sciences in Nineteenth-Century American Legal Education" (1999) 17 L. and Hist. Rev. 421-466.
Thomas A. Sebeok and Jean Umiker-Sebeok, '"You Know My Method': Juxtaposition of Charles S. Peirce and Sherlock Holmes," in Umberto Eco & Thomas A. Sebeok, eds., The Sign of Three: Dupin, Holmes, Peirce (Bloomington: Indiana UP, 1983), 11-54.
Marcia Speziale, "Langdell's Concept of Law as Science: The Beginning of Anti- Formalism in American Legal Theory" (1980) 5 Vermont L. Rev. 1-37.
Robert Stevens, "Harvard Sets the Style" in Law School: Legal Education in American from the 1850s to the 1980s (Chapel Hill: UNC Press, 1983), 51-72.
Julian Symons, "The Golden Age: the Twenties," in Bloody Murder: From the Detective Story to the Crime Novel (New York: Mysterious Press, 1993) pp. 105-22.
S.S. Van Dine, "Twenty Rules for Writing Detective Stories" online: English 383 Women Mystery Writers
Els Wouters, "The Detective's Method: Abduction or Just Fiction?" (2001) 137 Semiotica 99-111. 239
R. George Wright, "The Role of Intuition in Judicial Decisionmaking" (2006) 42 Houston L.Rev. 1385-90.
Textbook prefaces by Langdell, Keener, Wambaugh, Chaplin, and Beale
Objectives:
"This course will investigate the mystery-solving mentality that has influenced depictions of lawyers, and lawyers' own self-perceptions, since the late nineteenth century. We will look at mystery stories, material from early case books, legal decisions, writings on legal education, discussions of legal reasoning, and critical writings on mystery fiction and on the genre's history. Figures to be considered will include the two Holmeses (Sherlock and Oliver Wendell), Christopher Columbus Langdell, Melville Davison Post (the creator of a Sherlock Holmesian lawyer named Randolph Mason), Franco Moretti, and Carlo Ginzburg. We will consider how and why detectives are often portrayed as lawyers (and vice versa), and how this conjunction has affected lawyers' views of themselves and their understanding of legal doctrine. We will also consider the limits of this analogy."
Grading:
Class participation and two comment papers (2-3 pages), 15%; and a 20-25 page final paper, 85%
University of Victoria Yes
Instructor: Professor Rebecca Johnson
Course Title: Theories of Gender & Justice in Popular Culture Narratives
Works on current reading list:
Primary Works
Pedro Almodovar, High Heels (1991)
George Cukor, Adam's Rib (1949)
Marleen Gorris, A Question of Silence (1982)
F. Gary Gray, Set it Off(1996) 240
Alfred Hitchcock, Blackmail (1929)
Akira Kurosawa, Rashomon (1950)
G.W. Pabst, Pandora's Box (1929)
Roman Polanski, Death & The Maiden (1994)
Otto Preminger, Anatomy of a Murder (1959)
Martin Ritt, Nuts (1987)
Secondary Works
Ruth Buchanan & Rebecca Johnson, "Getting The Insider's Story Out: What Popular Film Can Tell Us About Legal Method's Dirty Secrets" (2001) 20 Windsor Yearbook of Access to Justice 87-110.
Denise Lardner Carmody, "Japanese Women" in Women and World Religions (Englewood Cliffs, NJ: Prentice Hall, 1989) 115.
Mary Ann Doane, "The Erotic Barter: Pandora's Box" in Femmes Fatales: Feminism, Film Theory, Psychoanalysis (New York: Routledge, 1991) 142.
Ricie Donald, "Rashomon" in The Films of Kurosawa (Berkeley, CA: California UP, 1973)70.
Thomas Elsaesser, "Lulu and the Meter Man: Pabst's Pandora's Box (1929)" in Eric Rentschler, ed., German Film and Literature: Adaptations and Transformations (New York: Methuen, 1986) 40.
Judy Elsley, "Laughter as Feminine Power in The Color Purple and A Question of Silence" in Regina Barreca ed., New Perspectives on Women and Comedy, at 193. (Philadelphia: Gordon and Breach Science Publishers, 1992).
Louise Everett Graham and Geraldine Maschio, "A False Public Sentiment: Narrative and Visual Images of Women Lawyers in Film" (1995-96) 84 Kentucky L.J. 1027
Orit Kamir, "Judgment By Film: Socio-Legal Functions of Rashomon" (2000) 12 Yale J. ofL. & Human. 39-88.
. "X-Raying Adam's Rib: Multiple Readings of a (Feminist?) Law-Film" (2000) 22 Studies in Law, Politics and Society 103. 241
. "Feminist Law and Film: Imagining Judges and Justice" (2000) 75 Chi.-Kent L.Rev. 899.
. Framed: Women in Law and Film: How Law on Screen Constructs Gender, Dignity and Honor (Durham, NC: Duke University Press, 2006).
Orit Kamir, "Memory, Recovery and Justice in Conflicted Societies: A Law-and-Film Perspective" (2002) [unpublished].
Marsha Kinder, "From Matricide to Mother Love in Almodovar's High Heels" in Kathleen M. Vernon and Barbara Morris, eds., Post-Franco, Postmodern: The Films of Pedro Almodovar (Westport, CT: Greenwood, 1995).
Catharine A. MacKinnon, Feminism Unmodified: Discourses on Life and Law (Cambridge: Harvard UP, 1987).
Tania Modleski, "Rape vs. Manslaughter: Blackmail" in The Women Who Knew Too Much: Hitchcock and Feminist Theory (New York: Routledge, 1989) 17.
William Ian Miller, "Clint Eastwood and Equity: Popular Culture's Theory of Revenge" in Austin Sarat & Thomas R. Kearns, ed., Law in the Domains of Culture (Ann Arbor: Michigan UP, 1998).
Jeanette Murphy, "A Question of Silence" in Charlotte Brunsdon, ed., Films for Women (London: British Film Institute Publishing, 1986) at 99.
Carl Planting, "Spectacles of Death: Clint Eastwood and Violence in Unforgiven" (1998) 37:2 Cinema Journal 65-83.
Greetha Ramanathan, "Murder as Speech: Narrative Subjectivity in Marleen Gorris' A Question of Silence" (1992) 15 Genders 58.
Carole Shapiro, "Women Lawyers in Celluloid: Why Hollywood Skirts the Truth" (1994) 25 U. Toledo L.Rev. 955.
Robert C. Solomon, "Justice v. Vengeance: On Law and the Satisfaction of Emotion" in Susan Bandes, ed., The Passions of Law (New York: New York UP, 2001) at 123- 140.
Donald Spoto, "Blackmail" in The Art of Alfred Hitchcock: 50 Years of His Motion Pictures (New York: Anchor Books, 1992) 20.
Simon Taylor, "The Middle Class" in Germany 1918-1933: Revolution, Counter- Revolution, and the Rise of Hitler (London: Duckworth, 1983) 45. 242
Linda Williams, "A Jury of Their Peers: Marleen Gorris's "Question of Silence" in Diane Carson, Linda Dittmar & Janice R. Welsch eds., Multiple Voices in Feminist Film, at 432. (Minneapolis: Minnesota UP, 1994).
Robin Wood, "Symmetry, Closure, Disruption: The Ambiguity of Blackmail" in Hitchcock's Films Revisited (New York: Columbia UP, 1989) 249. n.b. Prof. Johnson shows Clint Eastwood's film Unforgiven (1992) in her first-year Criminal Law course as a tool for discussing the concepts of sentencing, parties to an offence, conspiracy and murder. Prof. Johnson also uses the National Film Board documentary film Kikkik (2002) in her teaching.
Grading:
Two options: 1) In-class participation, 15%; weekly comments, 15%; community journal, 5%; final comment, 5%; and final exam, 60% 2) In-class participation, 15%; weekly comments, 15%; community journal, 5%; final comment, 5%; annotated bibliography, 10%; and major paper, 50%
University of Western Ontario Yes
Instructor: Professor Mysty Clapton
Course Title: Literature & Law
Works on current reading list:
Primary Works
. Margaret Atwood, Alias Grace (1996)
Russell Banks, The Sweet Hereafter (1991)
George Elliott Clarke, "Execution Poems" (2000)
Ariel Dorman, Death and the Maiden (1991)
Susan Glaspell, A Jury of Her Peers (1917)
Harper Lee, To Kill a Mockingbird (film) (1962)
David Mamet, Oleana (1994) 243
Herman Melville, Billy Budd (1924)
Heinrich von Kleist, Michael Kohlhass (1810)
Secondary Works
C.K. Allen, "Law in the Making" (London: Oxford UP, 1927).
Lisa Belkin, "Where 21 Youths Died, Lawyers Wage a War" New York Times (January 18, 1990) Al.
Robert Cover, "Of Creon and Captain Vere" in Justice Accused: Anti-slavery and the Judicial Process (New Haven: Yale UP, 1978) at 1 -7.
Richard Delgado, "Rodrigo's Final Chronicle: Cultural Power, the Law Reviews, and the Attack on Narrative Jurisprudence" (1995) 68 S. Cal. L. Rev. 545.
Allan Dershowitz, "Life is Not a Dramatic Narrative" in Peter Brooks & Paul Gewirtz, eds., Law's Stories (Yale UP, 1996) at 99.
Robert Ferguson, "Untold Stories in Law" in Gary Bellow and Martha Minow (eds.), Law Stories: Law, Meaning, and Violence (Ann Arbor: Michigan UP, 1996) at 84.
Margaret Fried & Lawrence Frolik, "The Limits of Law: Litigation, Lawyers and the Search for Justice in Russell Banks' 'The Sweet Hereafter'" (1995) 7:1 Cardozo Stud. L. & Lit. 1.
Carolyn Heilbrun & Judith Resnik, "Convergences: Law, Literature, and Feminism" (1990) 99 Yale L.J. 1913.
Linda Hutcheon, The Canadian Postmodern: A Study of Contemporary English-Canadian Fiction (Toronto: Oxford UP, 1988).
Steven Lubet, "Reconstructing Atticus Finch" (1999) 97:6 Michigan L.Rev. 139.
Jeffrie Murphy, "Two Cheers for Vindictiveness" in Getting Even: Forgiveness and Its Limits (London: Oxford UP, 2003) at 17.
—, "Vengeance, Justice and Forgiveness" (2002) 2:1 Canyon Institute for Advanced Studies 1.
Teresa Phelps, "Margins of May comb: A Rereading of to Kill a Mockingbird'' (1994) 45 Ala. L.Rev. 511.
Richard Posner, "Law and Literature: A Relation Reargued" (1986) 72 Virginia L.Rev. 1351. 244
—, Law and Literature, rev. ed. (Cambridge: Harvard UP, 1998).
Charles Villa-Vincencia, "Getting on with Life: A Move Towards Reconciliation" in Charles Villa-Vicencio and Wilhelm Verwoerd, (eds.) Looking Back, Researching Forward: Reflections on the Truth and Reconciliation Commission of South Africa (London: Zed Books, 2000) at 199.
Richard Weisberg, Poethics: And Other Strategies of Law and Literature (New York: Columbia UP, 1992).
—, "Proclaiming Trials as Narratives" in Peter Brooks & Paul Gewirtz, eds., Law's Stories (Yale UP, 1996) at 61.
Recommended readings:
Grading:
15 page essay, 45%; Critical Response Essays, 20%; Class Contribution 10%; and Seminar presentation, 25%
Course obiective:
The primary goal of the course is to encourage students to think critically and creatively about the legal system and the profession of law, using literary texts as the starting point. We will study the intersection between law and literature in two main ways: (a) law in literature (the depiction of the law in fiction; using literature as a lens to study normative, ethical and conceptual issues in law), and (b) law as literature (the application of literary theories and techniques of understanding to legal texts and activities).
As a byproduct of our primary objective, we will have the opportunity to reflect on the importance (and indeterminacy) of language, word choice, metaphor and storytelling in the legal profession.
York University- Osgoode Hall Law School Yes
Instructor: Professor Kate Sutherland
Course Title: Literature & Law 245
Appendix B: Bibliography of Canadian Law and Literature Scholarship
Rosalie Abella, "Law, Literature, and Identity: Seeking Equality" (2000) 63 Sask. L. Rev. 1.
Shulamit Almog, '"Windows': Reflections on Law and Literature in the Digital Age" (2007) 57:4 Univ. T. L. J. 755-80.
Gary Boire, "The Language of the Law: The Cases of Morley Callaghan" in Gerald Lynch & Angela Arnold Robbeson, eds., Dominant Impressions: Essays on the Canadian Short Story (Ottawa: Ottawa UP, 1999).
George Elliott Clarke, "Raising Raced and Erased Executions in African-Canadian Literature: Or, Unearthing Angelique" in Camille A. Nelson and Charmaine A. Nelson, eds., Racism, Eh?: A Critical Inter-Disciplinary Anthology of Race and Racism in Canada (Concord, Ont: Captus Press, 2004) 66.
Ian Duncanson, "Cultural studies encounters legal pluralism: certain objects of order, law and culture" (1997) 12:2 Can. J.L. and Soc. 115.
C.R.B. Dunlop, "Literature studies in law schools" (1991) 3:1 Cardozo St. in L. & Lit. 63.
. "Debtors and Creditors in Dickens' Fiction" (1990) 19 Dickens Stud. 25.
. "Law in Literature: Legal Themes in Short Stories" (1996) 8:2 Cardozo St. in L. & Lit. 363.
Isobel Findlay, "Discourse, difference and confining circumstances: the case of R. v. Gladue and the 'proper interpretation and application' of s. 718.2(e) of the Criminal Code" (2001) 10:2 Griffith L. Rev. 225.
. "Just expression: interdisciplining the law and literature" (2000) 63 Sask. L.Rev. 49.
Barry Hoffmaster, "Inflated interpretation and hollow hermeneutics" (1991) 4 Can. J. L. Juris. 199.
Rebecca Johnson, "Karnir: Framed: Women in Law and Film" Book review (2007) 105:6 Michigan L.Rev. 1353.
. "Blurred boundaries: a double-voiced dialogue on regulatory regimes and embodied space" (2005) 9 Law-Text-Culture 157.
. "Confronting the bogeyman: Latimer, and other fearful tales of murderous fathers and monstrous children. (2001) 64:2 Sask. L.Rev. 591. 246
. "Women, Social Change, and the Politics of Power, A Taste of Power: A Black Woman's Story. By Elaine Brown. The Politics of Pragmatism: Women, Representation, and Constitutionalism in Canada. By Alexandra Dobrowolsky" Book Review (2000) 2:2 Can. J. of W. and L. 527.
Rebecca Johnson and Ruth Buchanan, "Getting the insider's story out: what popular film can tell us about legal method's dirty secrets" (2002) Windsor Yearbook of Access to Justice 87.
Elizabeth Judge, "Law and the Victorian Novel," in William Baker & Kenneth Womack, eds. A Companion to the Victorian Novel (London: Greenwood, 2002), pp. 123-35.
Dennis Klinck, The Word of the Law (Ottawa: Carleton University Press, 1992).
.'"This other Eden': Lord Denning's pastoral vision" (1994) 14 Ox. J. L. St. 25.
. "Evidence as rhetoric: a semiotic perspective" (1994) 26 Ottawa L. Rev. 125.
. "The language of codification" (1989) 14 Queen's L.J. 33.
. "Style, meaning and knowing: Megarry J. and Denning M.R. in In Re Vandervett's Trusts (No. 2)" (1987) 37 Univ. Toronto L.J. 358. . "Embedded assertions: linguistic considerations in the rule in St. Lawrence (R. v. St. Lawrence, 1949 Ont. 215) (1998) 12 Queen's L.J. 21.
-—. "Shakespeare's Richard II as Landlord and Wasting Tenant" (1998) 25 College Literature 21 in K. Myrsiades and L. Myrsiades, Un-disciplining Literature: Literature, Law and Culture (New York: Peter Lang, 1999), 190/
. "Criticising the judges: some preliminary reflections on style" (1986) 31 McGill L.J. 655.
Dennis Klinck and Douglas Lind, "Azdak, the rascal judge" (1999) 12:2 Can. J. of L. and Juris. 223.
Dennis Klinck and Kate Sutherland "The word of the law" Book review (1992) 56 Sask. L. Rev. 189.
Alexandre Lefebve, The Image of Law: Deleuze, Bergson, Spinoza (Stanford: Stanford UP, 2008).
Desmond Manderson. "The ethics of proximity: an essay for William Deane" (2005) 14:2 Griffith L. Rev. 295..
. "Another modest proposal" (2005) 10:2 DeakinL. Rev. 640. 247
. "Proxity: the law of ethics and the ethics of law" (2005) 28:3 University of New
South Wales L.J. 696.
. "Interstices: new work on legal spaces" (2005) 9 Law-Text-Culture 1.
. "In the tout court of Shakespeare: interdisciplinary pedagogy in law" (2004) 54:2 J. of Legal Educ. 283. . "From hunger to love: myths of the source, interpretation, and constitution of law in children's literature" (2003) 15:1 Law and Literature 87.
. "Apocryphal jurisprudence" (2001) 23 St. in Law, Politics, and Society 81.
. "Et lex perpetua: dying declarations & Mozart's Requiem" (1999) 20:5 Cardozo L. Rev. 1621.
. "Substances as symbols: race rhetoric and the tropes of Australian drug history" (1997) 6:3 Soc. & Legal St. 383.
. "Beyond the provincial: space, aesthetics, and modernist legal theory" (1996) 20:4 Melbourne U.L.Rev. 1048.
. "Statuta v. acts: interpretation, music, and early English legislation" (1995) 7:2 Yale J.L. & Hum 317.
Desmond Manderson and David S. Caudill, "Introduction: Modes of Law: Music and Legal Theory, An Interdisciplinary Workshop" (1999) 20:5 Cardozo L. Rev. 1325.
Desmond Manderson and Sarah Turner, "Coffee house: habitus and performance among law students." (2006) 31:3 L. and Soc. Inquiry 649.
Desmond Manderson and Paul Yachnin, "Love on trial: nature, law, and same-sex marriage in the Court of Shakespeare" (2004) 49:3 McGill L.J. 475.
Roderick A. MacDonald, "Epistles to Apostles" (2001) 39:3 Alta. L.Rev. 668.
Anne McGillivray, ed., "Adversaria: Literature and the Law" (1994) 27 Mosaic: A Journal for the Interdisciplinary Study of Literature.
. Capturing Childhood: The Indian Child in the European Imagination' in M.D.A. Freeman and Andrew Lewis, eds., Law and Literature (Oxford: Oxford UP, 1999).
. "He would have made a wonderful solicitor: Law, Modernity and Professionalism in Bram Stoker's Dracula" in W. Wesley Pue and David Sugarman, eds., Lawyers 248
and Vampires: Cultural Histories of Legal Professions (Oxford: Hart, 2003) pp. 225-267.
. "Recherche Sublime: An Introduction to Law and Literature" (1994) Mosaic: A Journal for the Interdisciplinary Study of Literature pp. i-ix.
. [Various annotations] in Elizabeth Villiers Gemmette, ed., Law in Literature: An Annotated Bibliography of Law-Related Works. (Troy, NY: Whitston, 1998).
. "What sort of grim adventure was it on which I had embarked?' Lawyers, Vampires and the Melancholy of Law (2002) 4 Gothic Studies 116-132.
. "Law and Literature: An Immodest Proposal" (1992) Bulletin Can. L. & Soc. Assoc. 2.
. "Feminist Futures: Contemporary Women's Speculative Fiction" (1991) 5 Can. J. Women & L. 578.
. "Different Voices, Different Choices: Playing at Law and Literature" Review (1992) 7:2 Canadian J.L. and Soc. pp. 253-265.
Janice McGinnis-Dickin, "Law in literature" Book review (1993) 8 Canadian J.L. and Soc. 243.
Ed Morgan, "The Aesthetics of International Law" (Toronto: Toronto UP, 2007).
. "International Law as Literature of Terror" (2002) 15:2 Can. J. L. and Juris. 317.
. "The Roulette of Suffering" (2001) 9:2 Cardozo J. Int'l and Comp. L 297.
. "In the Penal Colony: Internationalism and the Canadian Constitution" (1999) 49:4
U.T.L.J.447.
. "Act of blindness, state of insight" (1995) 13 Boston U. Int'l L.J. 1.
. "Retributory theater" (1988) 3 American U.J. Int'l L. and Policy 1.
. "International law in a post-modern hall of mirrors" (1988) 26 Osgoode Hall L.J. 207. . "The imagery and meaning of self-determination" (1988) 20 N.Y.U. J. of Int'l L. and Politics 355.
. "The Mild, Mild West: Living By a Code in Canadian Law and Film," Law, Culture, & Humanities 2 (2006): 115-35. 249
Josh Nisker, "The (Comic) Tragedy of Formalism in Shakespeare's The Merchant of Venice" (2006) 15 Dal. J. Legal St. 257.
Kent Roach "The uses and audiences of preambles in legislation" (2001) 47:1 McGill 129.
Nishan Swais, "Putting it in writing: drafting Faust's contract with the Devil" (2001) 14:2 Can. J. of L. and Juris. 227.
Ian Ward and Cailin Morrison, "Law and literature" Book review (1996) 11 Can. J. of L. andSoc. 314.
Mark Weisberg, "Epilogue: when (law) students write" (2003) 27:1 L. St. Forum 421.
. "Learning to trust your own mind and other stories about (legal) education" (1992) 17 Queen's L.J. 304.
Rudy Wiebe, "Land, language, and law" (2000) 63:1 Sask. L. Rev. 28.