POST-CHARTER LEGAL EDUCATION: DOES ANYONE TEACH LAW ANYMORE?

Roderick A. Macdonald

How has the Charter changed legal education in over the last quarter-century? Does anyone teach law anymore, in the way it used to be taught? Or is the teaching of law increasingly driven by the rights culture of the Charter, and the Charter precedents created in cases from the lower courts all the way to the Supreme Court? On the 25th anniversary of the Charter, McGill law professor Rod Macdonald offers what he terms “25 brief commentaries on post-Charter legal education.” For each of these “factoids,” he states “what I perceive to be a significant institutional, social, judicial or legal cultural change. Then I elaborate briefly upon how I perceive it to have affected law teaching.” He begins with an important argument, that “the historical substance of constitutional law has been progressively displaced by a preoccupation with the Charter.”

En quoi la Charte des droits et libertés a-t-elle modifié l’éducation juridique au Canada depuis un quart de siècle ? Enseigne-t-on toujours le droit comme autrefois ou cet enseignement est-il de plus en plus marqué par la culture des droits et les précédents créés en vertu de la Charte dans des causes jugées à tous les niveaux, des tribunaux inférieurs à la Cour suprême ? En ce 25e anniversaire de la Charte des droits et libertés, Rod Macdonald, professeur de droit à l’Université McGill, propose « 25 brefs commentaires sur l’éducation juridique depuis l’adoption de la Charte ». Dans chacun d’eux, il décrit ce qu’il considère comme « un changement pertinent » et les répercussions qu’il a entraînées sur l’enseignement. Selon lui, « la substance historique du droit constitutionnel a été progressivement absorbée par la Charte des droits et libertés ».

n 1975, at a conference celebrating the 100th anniversary last, published contribution to Charter scholarship. To date I’ve of the establishment of the , my resisted the temptation to revisit schedule B to the Canada Act I colleague Stephen Scott was asked what he would recom- 1982 (UK), although in other constitutional texts I have skirt- mend as an appropriate commemoration of the event. ed its frontiers. Admittedly, there have been many times when Without missing a beat he replied: “Restore appeals to the frustration in the classroom has led me to add another para- Privy Council.” graph to the apocryphal article I’ve been mentally composing Regrettably, I have no witty remark like “Amend the in fits and starts since then. As yet I’m undecided as to whether Preamble to replace the Supremacy of God with the this virtual parting shot will be entitled — evoking the memo- Supremacy of the Chief Justice” as a response to the ques- ry of the barons at Runnymede in 1215, and in contrast to their tion I’ve undertaken to address on the Charter’s 25th efforts — Parva Carta, or perhaps more charitably, Media Carta. anniversary. In fact, I’m a bit embarrassed by the request to Here, I have a different objective — namely, to consider consider how the Charter has changed legal education, for in what ways teaching in law faculties has changed over the it implicitly brings home to me the uncomfortable fact that past quarter-century. In doing so I shall, of course, indirectly I am one of a shrinking cohort of Canadian law professors examine various changes to Canadian legal culture generally: — those who were actually in the ranks prior to 1982. (1) how law, and especially constitutional law, may have I recall that shortly after Canada’s purported passage from changed; (2) how politics may have changed; (3) how the a state of nature to a state of grace on April 17, 1982, I was practice of law may have changed; (4) how judging may have asked to participate in a Symposium Issue of the Supreme Court changed; (5) how legal scholarship may have changed; and Law Review. My short essay, I vowed, would be my first, and (6) how law teaching and legal research in precincts other

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than law faculties — for example, in precipitated any of the changes in legal styled as “Constitutional Guarantees.” In political science, economics, sociology, education that I note here. Absent a care- the 1977 first edition of Canadian philosophy, socio-legal studies, public ful empirical and multivariate regression Constitutional Law Peter Hogg allocated 29 administration and policy studies departments — may Few are the constitutional law teachers today who do not have changed. Nonetheless, sacrifice their teaching of history, politics, institutions, practices, my focus is on law faculties, conventions and federalism on the altar of the Charter. and the object of inquiry is legal pedagogy. How do law teachers analysis I hesitate to make causal claims, of 466 pages to “Civil Liberties.” Today, imagine their role? How do they per- although it is apparent that some of the the classic casebook treatment, Canadian form it? What implicit messages do changes I signal are more closely con- Constitutional Law (3rd edition), devotes they convey to their students through nected to the advent of the Charter than almost 60 percent of its 1,300 pages to their teaching, their research and the others. In this (perhaps false) modesty I “Rights” — with only 40 of those pages on institutions and processes they esteem? take my distance from those preoccu- “Rights” not dealing with the Charter, pied with the document who believe while the latest loose-leaf of Hogg’s treatise efore presenting my observations, that the parentage of all significant consecrates over 40 percent of its pages to B I’d like to enter three caveats. One changes to governance in Canada since “Civil Liberties” — all but 25 of which relates to the occasion for this text, 1982 — for better or for worse — can be concern the Charter. Few are the constitu- one to the nature of the claims I shall attributed to the Charter. Again, I return tional law teachers today who do not sac- be making and the third to the scope to this naive conception of the relation- rifice their teaching of history, politics, and purpose of this essay. ship between law and social change at institutions, practices, conventions and In deference to the anniversary we the end of this essay. federalism on the altar of the Charter. are commemorating, I have organized A third caution is stylistic. This is the reflections that follow as 25 brief not a law review article. There are no 2. Sections 91-101 and 133 of the commentaries on post-Charter legal edu- footnotes. I have tried to avoid weasel Constitution Act, 1867 have been de- cation. The very fact that it is 25 (and not words. I mean deliberately to be emphasized as structural reflections of 19, 22 or 27) years of Charter dispensa- provocative. After all, whether I’m the Canadian political community. tion we are observing reveals much about right is not that important. What real- Until the late 1970s, considerable effort the mystical commitments that we asso- ly matters is to reflect on the scope and in constitutional law teaching focused ciate with the document. Like the scale of these purported changes and on how the then British North America ancient Greeks who thought the key to to assess their impact. Act, 1867 sought to construct a federa- the universe lay in mathematical rela- What follow are 25 post-Charter tion not just of existing colonial political tionships, in 21st century Canada we pedagogical factoids. First I state what units, but of peoples and communities. choose our celebratory moments on I perceive to be a significant institu- The language of two founding peoples or purely formal criteria — imagining not tional, social, judicial or legal cultural of the Constitution as a “compact” only that 25 is a more significant number change. Then I elaborate briefly upon between two nations acknowledged the than 24 or 26, but also that the mere how I perceive it to have affected law centrality of ethnic, cultural, linguistic coming into force of the Charter in 1982 teaching. and religious diversity to the definition was the most salient substantive event. of the Canadian state. The key compo- Could we not also imagine artifacts such 1. The historical substance of constitu- nents of identity were nurtured through as the , the tional law has been progressively dis- institutional arrangements such as the , the Quebec Charter of placed by a preoccupation with the Senate, an upper house in Quebec, the Human Rights and Freedoms, the Charter. When Albert Abel published the attribution of marriage and divorce to Reference, the Meech Lake 900-page 4th edition of Bora Laskin’s lead- federal jurisdiction and a plethora of Accord, the PEI Judges Reference, the ing casebook Canadian Constitutional Law administrative mechanisms guarantee- , the Secession in 1973, he left out the chapter on civil lib- ing political participation to minority (or Reference or the Anti-Terrorism Act (and erties that Laskin included in the 3rd edi- to use the expression of the day — dis- the dates associated therewith) as equally tion on the grounds that the subject was sentient) communities. Today, the con- transformative constitutional moments? not really constitutional law. The editor stitutional protection of social diversity I pick up on this obsession with the was obliged — in the guise of a revised 4th is conceived as being primarily about Charter as artifact later. edition two years later — to add a chapter anti-majoritarian constraints upon state of 87 pages on the subject prepared by action, rather than about the specific y second caveat is methodologi- Bora’s son, John I. Laskin. Laskin’s original mechanisms and modes that ensure M cal. I do not wish to be taken as text of 1951 contained a concluding chap- enfranchisement within a political com- claiming that the Charter has actually ter (22 of 663 pages) treating what he munity. Concomitantly, even when con-

76 OPTIONS POLITIQUES FÉVRIER 2007 Post-Charter legal education: does anyone teach law anymore? stitutional law teaching focuses on “par- 4. The length of judicial judgments, from other cases in support of their opin- ticipation enhancing” institutions and especially in constitutional cases, and ions. The law reports are replete with practices, it does so almost exclusively by especially of the Supreme Court, has judicial observations that extrinsic aids evoking justiciable rights attributed to increased exponentially. Prolixity is fel- to interpretation were impermissible and individuals, and not the design and low-traveller of pragmatic and function- living writers could not be cited as functioning of these institutions. al reasoning. The seven separate authority. Even after Re Drummond Wren opinions in the landmark 1959 case opened the door, landmark cases like 3. Conceptual classifications previously Roncarelli v. Duplessis, for example, took Roncarelli v. Duplessis contained no cita- thought discrete no longer frame the up only 65 pages in the Supreme Court tion to parliamentary debates or to any interpretative logic of legislative jurisdic- Reports. By contrast, four opinions in the scholarly text. By contrast, in the M. v. H. tion under sections 91 and 92. M. v. H. case in 1999 consumed 202. This case, there were citations to almost 40 Traditionally, constitutional review on inflation, which is probably inevitable such sources. The broadening of justifi- federalism grounds began with determin- given the complexity of issues now catory materials may evidence a democ- ing the “” of legisla- being adjudicated under general stan- ratization of legal reasoning, but it also tion, asking “What is the matter?” and dards, has major consequences for the invites judgments in which reasons for then assigning any particular statutory way that judicial decisions are compiled decision sometimes seem more a recita- enactment to one or another of the and taught. To take one example, in the tion of ex post facto rationales than an “water-tight” classes of subjects set out in 4th revised edition of Laskin’s casebook, engagement with the disciplining ex ante sections 91 or 92. The difficulties courts Cartwright’s majority judgment in the constraints of a coherent normative experienced in applying the “double Coughlin case was reproduced almost in regime. That there is a concurrent profes- aspect” doctrine and their inconsistent its entirely, and Ritchie’s dissent was sorial tendency to pass directly to ques- responses to the question whether an edited by half; in the recent Canadian tions of high political theory without “ancillary powers” doctrine formed part Constitutional Law (3rd) compendium, careful consideration of the specific issue of Canadian constitutional law bedev- the 16-page case appears in an extract of to be decided and the intermediate level illed the endeavour. Notwithstanding the 2 pages. Even contemporary cases are questions of political, economic and attempt in City National Leasing to save severely edited. In the latest version of social policy is hardly surprising. For the appearances of categorical exclusivi- Mullan’s excellent Administrative Law many law teachers today, the judicial ty, over the past 25 years, a different dis- materials only the Baker decision is decision serves simply as a pretext for course — pragmatic and functional reproduced in full. In such a presenta- armchair philosophizing. rather than conceptual — has come to tion of cases, law teaching no longer dominate. Contemporary law teaching focuses on the subtle processes by which 6. Courts have explicitly recognized largely follows this functionalist frame, the messiness of everyday life gets dis- and increased the normative weight to the point where conceptual arguments tilled into a judicial decision reasoned given to unwritten, implicit constitu- can no longer sustain even the organiza- through from start to finish. In the man- tional principles. For its first hundred tion of the curriculum. There is scarcely a ner of the apocryphal contracts professor years, the Supreme Court only rarely course today that cannot be (always a who finds the ratio decidendi in the third acknowledged the existence of unwrit- logical possibility) and is not being (an last line of the fourth last paragraph of a ten, implicit constitutional principles. epistemic choice) taught as a variation on judgment, much contemporary peda- The idea was floated in the Alberta Press case, Re Initiative and That there is a concurrent professorial tendency to pass directly Referendum and certain to questions of high political theory without careful consideration “implied Bill of Rights” deci- of the specific issue to be decided and the intermediate level sions, but was expressly rejected in the late 1970s in questions of political, economic and social policy is hardly Dupond. Then the Senate, surprising. For many law teachers today, the judicial decision Patriation, Quebec Veto, serves simply as a pretext for armchair philosophizing. and Manitoba Language References brought these a Charter theme. While functionalism gogy rather imagines the case — or more principles back to consciousness, overcomes misplaced formalism and frequently, the excerpt — simply as an whence they emerged full blown in the invites law teachers to frame pedagogy alternative way of presenting a legal rule. PEI Judges and the Quebec Secession around substantive issues, an over-com- References of the 1990s. But because the mitment to imagining law pragmatically 5. The scope of justificatory materials theory of such overarching principles of — as a seamless web — enables a tug on referred to in judicial decisions has been the common law constitutional tradi- a single thread to unravel the whole, greatly enlarged. Prior to the mid-1980s tion was not fully articulated by scholars untrammelled by jurisdictional stitching. it was rare for judges to cite sources apart prior to the 1980s, their justification

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(wrongly) appeared to rest on little other advanced civil procedure in the guise of law reform but are simply seen as exem- than judicial fiat. Moreover, the rich his- constitutional review. plifying a discrete . Changes tory and jurisprudential grounding of to the length, form and structure of judi- implied principles of parliamentary 8. There has been a general tendency to cial decisions have also led to changes in intent such as the “rules of natural jus- legislative inflation (hyperlexis), and a how processes of judicial and legislative tice” have also been lost. While some proliferation of statutory instruments law reform are conceived. Contemporary professors essay to (re)construct such a cast in broad, abstract formulas. The casebooks rarely contain “wrong” deci- theoretical ground, in many cases the teaching of legislation has never been a sions that are well reasoned, and teaching of basic principles of public strong point of North American legal “implausible” dissents are typically con- law is often reduced to tactical invoca- education. For example, even in the signed to “editor’s notes.” Teaching com- tions of favoured political theorists 1960s most teaching of criminal law was pendia are now replete with “the latest (Aristotle today, Rawls tomorrow), or grounded in the assumption that the case” which is advanced as standing for a non-contextualized assertions that are Criminal Code was epiphenomenal. One doctrinal principle that is “true because not rooted in legal culture, constitution- learned the law by reading cases, not the the court said so.” The use of a series of al history and political philosophy. Code. Today, a similar approach to inter- public law cases — for example the line preting statutes prevails — but for quite of cases from Tommy Homa to Christie v. 7. Administrative law has almost dis- different reasons. Because many enact- York Corporation, Drummond Wren and appeared as a separate field of public ments (the Charter being only one) and Noble v. Wolfe — to teach the logic of law, now being largely subsumed in many legislative phrases (“the best inter- common law adjudication, the structur- doctrines of judicial review on constitu- est of the child,” “humanitarian and ing of precedential claims in the flow of tional grounds. In the 1960s and 1970s, compassionate considerations,” for legal development, and the dynamics of administrative law was paradigmatically example) are cast in broad, abstract judicial reasoning runs up against the about the multi-functional regulatory terms, statutory interpretation is rarely inexorable logic of currency and rele- agency operating as a “government in about the precise meaning of words and vance. Moreover, only rarely do teaching miniature.” Soon thereafter, the belief phrases as such. Legislative texts are materials contain other documents that that policy coherence could best be pro- reduced to formulas, and become mere are not scholarly comments or editor’s moted through integrated institutional themes upon which lawyers and law notes. Today, the dynamic of everyday regimes that integrated legislation, teachers incessantly incite courts to spin law reform — a dynamic that law teach- administration, education, investigation variations. While there is now much ers once could nicely capture by teasing and adjudication as instruments of gov- greater sophistication in specialist schol- out the subtle interaction of power, poli- ernance fell victim to the ideology of arly writing about legislation, non-spe- tics, publicity, legislation and litigation deregulation. Emboldened by pseudo- cialist law teaching does not even make a driving situations like the K.V.P. saga of constitutional arguments about judicial independ- Changes to the length, form and structure of judicial decisions ence, and accustomed to have also led to changes in how processes of judicial and defending common law legislative law reform are conceived. Contemporary casebooks rights against statutory encroachment, courts con- rarely contain “wrong” decisions that are well reasoned, and cluded that the rule of law “implausible” dissents are typically consigned to “editor’s requires the institutional notes.” Teaching compendia are now replete with “the latest independence of all third- case” which is advanced as standing for a doctrinal principle party decision-makers. Since policy development through that is “true because the court said so.” case-by-case rights adjudication within pretense of attending to the text of a the late 1940s — gets played out only in public agencies is now constitutionally statute, and students receive little train- the monotone of “Charter dialogue.” suspect, the judicial branch has increas- ing as to how normative language can be ingly assumed the mantle of regulatory cast in propositional form. Whatever the 10. As human rights becomes a focus of governance. The substantive law of pub- “principles of fundamental justice” may “progressive” law teaching, courses lic administration that previously be, in the minds of many professors, they aimed at socio-economic inequality no focused on institutional design and the need not be connected to plausible longer excite the activist’s legal imagina- choice of governing instrument has received meanings of the words “princi- tion. In the late 1960s, the “progressive” been transformed by law teachers who ples,” “fundamental” or “justice.” component of a legal education defined do not reflect on when, why or how itself as the struggle to overcome substan- judges should have the last word. For 9. Cases and statutes are no longer read tive social inequality. While law faculties them, administrative law means as exercises in practical reasoning about did offer “civil liberties” seminars explor-

78 OPTIONS POLITIQUES FÉVRIER 2007 Post-Charter legal education: does anyone teach law anymore?

ing issues of criminal procedure and free- that set out in the 1960 Canadian Bill of through overtly distributive regulatory dom of expression, the bulk of activist Rights had meaning was the respect for rules, than on how courts may deploy professorial energy was devoted to legal craft. Yet when a blanket override of the constitutional instruments to like effect. clinics, and to landlord-tenant, con- Charter was deemed in Ford to be a per- After first year, distributive policy is taught almost exclusively in Civil liberties seminars have been re-engineered as human public law seminars, and the rights courses dealing with constitutional protections against bulk of private law courses the abuse of state power — paradoxically the one player best are consigned to practitioners positioned to defend the vulnerable from private power. whose pedagogy aims prima- rily at an uncontroversial sumer, social welfare and poverty law. missible use of section 33 some saw a presentation of black-letter rules. Today, by contrast, legal clinics struggle conscious disregard for craft in the to maintain the educational and com- Supreme Court’s decision to treat what 13. Law and its processes are conceived munity organizing components of their were carefully negotiated purposive more as vehicles of social control than mission. Landlord-tenant, consumer and arrangements as if they served no pur- as institutions meant to facilitate social welfare law courses have become pose. Increasingly law teaching takes human interaction. In the 1960s it was courses in judicial remedies. Civil liber- manner and form requirements as mere typically believed that the instruments of ties seminars have been re-engineered as formalities — abstracting from their evi- the state could be wielded in the service human rights courses dealing with con- dentiary, channelling and cautionary of human liberation and equality. The stitutional protections against the abuse purposes. Whether the topic is section 1 creation of agencies, boards and commis- of state power — paradoxically the one or section 33, and notwithstanding the sions and the enactment of legislation to player best positioned to defend the vul- contextual lines of inquiry invited by regulate market transactions were held nerable from private power. One law fac- Oakes, abstract argument aimed at out- out as the preferred vehicles for promot- ulty now has no course in law and come rather than process too often ing social change. Apart from the crimi- poverty, but eight offerings on aspects of frames classroom discussion. nal law, law was valued less for its human rights. Even when it survives, the constraining capacities than for its ability teaching of issues relating to the distribu- 12. Vast domains of legal regulation to empower the disadvantaged. The key tion of social power has been refocused meant to enhance citizen agency have spending programs of Canada’s second as the analysis of judicial decisions. been consigned to the margins of legal national policy — unemployment insur- On-the-ground “war on poverty” activi- consciousness. When I negotiated my ance, pensions, medicare and student aid ties no longer elicit much professorial initial teaching responsibilities in 1975, — imagined a major role for govern- enthusiasm and enter the student imagi- the “penance” course to which I was ment. The teaching of the Charter, by nation only as para- or extra-curricular assigned was administrative law — a contrast, is often framed as if market-dis- commitments. subject no one then wished to teach. By rupting legislation is inherently wrong the time I was myself a dean in the mid- and constraining. Once the state is recast 11. The place of craft and technique and 1980s I was obliged to give up teaching as the enemy of liberty, legal rights a respect for legal form have been dis- administrative law in order to induce a enforced by courts emerge as the key to placed by attention to abstract argu- candidate to come to McGill. The past protecting freedom. Inexorably, this ment and symbols. Two traditional 25 years have witnessed the waxing in leads to teaching that celebrates a mini- staples of legal education are the profes- popularity of public and international malist view of politics, a preference for sorial excursuses on the propositions that law courses. While contracts and torts limitations on economic redistribution “a judge came to the right result, but for (taught as theoretical instantiations of and a belief that discrimination and the wrong reasons” and that “the statute corrective justice) still fire the legal imag- inequality are caused by government was meant to correct a mischief of the ination, many private law courses that “intervention,” not by private belief and common law.” Lying behind these apho- focus on distributive justice and institu- behaviour (and the failure of the state to risms is the belief that there is a distinc- tional design (for example, property, correct inequality). In this understand- tive craft and technique to law. Law is, of trusts, wills and estates, civil procedure) ing, law facilitates human interaction course, a political act, and the mobiliza- have dropped off the curricular “A-list.” not when legislatures enact redistributive tion of law in support of a political cause As a consequence, little attention is now programs, but rather when courts over- is a key feature of modern legal practice. paid to the allocational assumptions of rule “discriminatory exclusions” from Litigation often is “the continuation of private law and the political economy existing programs and benefits. politics by other means,” but law is not that these assumptions reflect. The focus just politics. There is a particular craft to is less on how the common law may 14. Empirical research has not achieved law and to legal analysis. One reason why “work itself pure,” or how legislatures the role in legal scholarship predicted for a manner and form requirement such as may correct the injustices of private law it by those who built the Canadian legal

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education establishment in universities. which may or may not be justified, are and reflection about the politics, eco- Traditionally, as noted in the Law and merely particular reflections of a more nomics, sociology or ethics of the posi- Learning report, most law faculty research profound change in law’s rhetoric. The tions they adopt. was doctrinal. Occasionally an article last three decades have seen the triumph would deploy social science methodolo- of rights discourse as a mode of making 16. Third-party decision-making in a gy — scalogram analysis, jurimetrics, for political claims. Rights discourse tends to framework of adjudicative due process example — but these studies typically reduce complex political negotiation to has become the invariable recipe for focused on the measurement and predic- binary (I win — you lose) claims that can solving social and interpersonal con- tion of judicial decisions. Only in the late be circumscribed within a pre-existing flict. During the 1960s and 1970s large 1970s did the idea begin to take root that conceptual logic. Rights discourse also chunks of public policy were developed legal scholarship should consider outputs does not delimit the substantive content by politically responsible agencies with- and consequences as well as inputs. Even of claims: by definition, what any partic- in which officials exercised considerable then, empirical research was highly con- ular litigant considers to be a right — for discretion. Increasingly, however, there tested as a pet project of leftist radicals example, the “right to golf” — is for that has been pressure to require all decision- who promoted the development of uni- litigant a right worthy of legal protection. makers to find detailed textual authority versity-based legal education. for their exercise of power. Now, law teachers have practical- Many critics of the Charter have Government action through ly abandoned field research, pre- bemoaned its tendencies to judicialize explicit canonical norms has ferring broad ideological claims politics and to politicize the judiciary. become the gold standard of law. and citing dead white European Such a perspective has also males in support of anti-Charter These complaints, which may or may moved our understanding of ideology from the left, or living not be justified, are merely particular principles of human association white American males in support reflections of a more profound from a concern for the informal of anti-Charter ideology from the change in law’s rhetoric. The last and aspirational components of right. Pro-Charter ideologues find everyday life to a preoccupation comfort in a wider spectrum of three decades have seen the triumph with formalized rules of duty and socio-demographic authority, but of rights discourse as a mode of entitlement. Following the none do empirical research. making political claims. Rights Supreme Court decision in Neither today’s tabulators of judi- discourse tends to reduce complex Nicholson many administrative cial decisions who seek to prove law scholars sought to develop a excessive judicial “nullification” political negotiation to binary (I win conception of due process in nor contemporary proponents of — you lose) claims that can be public decision-making that dialogue theory between courts circumscribed within a pre-existing respected the logic of procedural and legislatures feel obliged to conceptual logic. Rights discourse fairness, but that also was test their hypotheses with data attuned to the wide diversity of about how police, public agen- also does not delimit the substantive social ordering processes cies or other officials actually content of claims: by definition, what deployed by statutory decision- respond to Charter decisions. As any particular litigant considers to be makers. Today, despite the urg- goes research, so goes teaching. a right — for example, the “right to ings of the Supreme Court in In addressing ex ante rights in the Knight, Baker, Singh and Khan to classroom, one need not be con- golf” — is for that litigant a right develop context-variable fairness cerned with presenting statistics worthy of legal protection. standards, tribunals fall over about the relative cost of political themselves to emulate the proce- and judicial action (lobbying and litigat- To see interpersonal relationships simply dures of courts. The teaching of policy ing), and the impact of these costs on dif- as a congeries of rights against others is to development has been transformed in ferent categories of rights claimants and assume that fundamental issues of social many faculties from a search for optimal equality seekers. policy can be represented as single- processes of public decision-making instance justiciable claims without refer- attuned to the solution of polycentric 15. Legal analysis grounded in abstract ence to systemic implications and the problems of distributive justice into a binary claims about the meaning of competing interests of those not actually quest for progressively refined models of words has flourished at the expense of present in the litigation. In such a “theo- adversarial adjudication. interdisciplinary legal research. Many logical” universe, teaching validates pro- critics of the Charter have bemoaned its fessors as experts in any field having to 17. Good governance, transparency and tendencies to judicialize politics and to do with the res publica, and dispenses accountability are now thought achiev- politicize the judiciary. These complaints, them from having to engage in research able only through a judicially enforced

80 OPTIONS POLITIQUES FÉVRIER 2007 Post-Charter legal education: does anyone teach law anymore? rule of law. The idea of constitutional resort. Consensual dispute resolution, opinions in “reference” cases. Likewise, government in the parliamentary tradi- negotiation, mediation, political lobby- in exercising their equitable jurisdiction tion embraces a broad range of political, ing, community organizing and other courts issued simple and narrowly administrative, ethical and judicial prac- forms of social action were to be pre- framed declarations, injunctions and tices and institutions. Constitutional ferred. Frequently, courts declined to act orders for specific relief. Today, however, judges are routinely asked to The idea of constitutional government in the parliamentary issue intricate injunctions tradition embraces a broad range of political, administrative, that require the spending of ethical and judicial practices and institutions. Constitutional money on programs, the readjustment of government principles such as cabinet subservience to Parliament, priorities and the detailed individual ministerial responsibility, an independent civil design of governance institu- service and the prerogative power of the Crown were central tions. Many law teachers to legitimating political action. applaud this expansion of jurisdiction and compete to principles such as cabinet subservience to directly — citing doctrines like exhaus- offer ever more complex coercive solu- Parliament, individual ministerial tion, ripeness, mootness, no standing, no tions to political conundrums that for- responsibility, an independent civil serv- interest, political question and so on, in merly lay within the purview of the ice and the prerogative power of the order to remit matters to other forums for legislative and executive branches. Crown were central to legitimating polit- determination (sometimes with and Indeed, until the Chaoulli decision, ical action. Over the three decades pre- sometimes without guidance about base- whenever courts declined jurisdiction by ceding 1982 the temptations of power line entitlements that should condition raising the “institutional competence” exercised by prime ministers trained as negotiation). Today, attornment to these argument or tailored a judgment in def- lawyers — St-Laurent, Diefenbaker and passive virtues is on the wane, especially erence to it, their decisions were typical- Trudeau — contributed to an erosion of among law teachers. The blandishments ly taught as examples of judicial these principles. Only Pearson seemed to of academic commentators, the aggres- abnegation and irresponsibility. understand that the statesman’s question siveness of certain litigators and the abdi- “Is this what I should be doing?” was cation of responsibility by governments 20. The conception of the citizen as a more important than the lawyer’s ques- have induced some courts today to take constellation of particular identities tion “Do I have the legal power to do it?” jurisdiction in cases previously seen as deserving of recognition and protection Since the 1980s five more lawyers — beyond their mandate. Where a constitu- now dominates understandings of legal Turner, Mulroney, Campbell, Chrétien tional document can be held out as a subjectivity. Until the late 1970s most and Martin — have accelerated the ero- polity’s primary vehicle for “framing val- Canadian law faculties were instantia- sion. Contemporary law teaching rein- ues,” public law teaching soon gives up tions of what John Porter called “the forces the mantra that only independent on assessing the optimal institutional vertical mosaic.” Courses, curricula and courts can guarantee openness, trans- allocation of governance tasks. Instead its pedagogy assumed a “normal” that parency, accountability and good gover- focus becomes illustrating that courts reflected the preoccupations of the nance. A preoccupation with the judicial have the constitutional authority to take existing cohort of law teachers. Since version of the rule of law means that rel- all manner of decisions, for all manner of then, the socio-demography of the pro- atively less attention is devoted to non- reasons, in all manner of cases — and fessoriate has changed dramatically and judicial institutions of accountability — arguing that they should do so. law faculties have sought to make space ombudsman, auditor general, freedom of for different perspectives that challenge information commissioner, privacy com- 19. Constitutionalism is less preoccu- the assumptions of inherited normality. missioner, ethics commissioner, public pied with the design of governance It is now conventional in law faculty service commission and so on. mechanisms, institutional competence discourse to characterize particular iden- and fixing an appropriate array of judi- tities as fundamental to legal subjectivi- 18. The “passive virtues” in judicial cial remedies. A central characteristic of ty. While section 15 arguments can be decision-making have been undermined classical adjudication is that it imagines understood as the consequence of the as other institutions routinely abdicate the resolution of actual cases and contro- framing of pedagogy and courses their political responsibilities in favour versies on the basis of pre-existing rules around equality claims, the section has of courts. A concomitant of the view that as applied to settled past events. by ricochet given a boost to causes that third-party adjudication is the optimal Admittedly, the case and controversy can be presented in this fashion. So, for process of social ordering is that the pos- requirement has always been attenuated example, the same-sex marriage debate sible is the necessary. Traditionally, courts in Canadian constitutional law, as courts was not cast in terms of the policies that were conceived as institutions of last have typically agreed to give advisory lie behind a governmental decision to

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provide for a legal structure within socialism (except in certain communitar- activities in the law. Over the past 30 which persons in relationships of ian variants) lives on only in wistful years the socio-demographics of the stu- dependence and interdependence could memories of Saskatchewan’s agrarian dent cohort in faculties of law has build meaningful lives together. The radicalism. changed considerably. On the plus side claim was, rather, one of exclusionary of the equation, one finds a much more discrimination. Almost noone argued 22. Professors generally, and constitu- diverse student body with over 60 per- that marriage ought no longer to be the tional law professors particularly, teach cent of law students in Quebec today touchstone of legal policy, even though a court-centric model of the legal uni- being women and more than 25 percent the discrimination arguments could verse. The traditional path to a post-war self-identifying as belonging to a visible have been met either by including same-sex couples Even though many more professors now have doctoral within the definition of mar- degrees, it is the judicial clerkship (and especially a judicial riage, or by simply getting clerkship at the Supreme Court of Canada) that has become a rid of the concept. Not sur- ticket to a career as a legal academic. Implicitly, the recruitment prisingly, in legal education today the notion of equality of judicial clerks and the promotion of judicial clerkships among tends to be argued as against students as indicators of merit reinforce the notion that the existing discriminatory con- judiciary lies at the centre of the legal enterprise. cepts and practices rather than as the search for even more expan- academic appointment in a Canadian minority. In addition, students arrive at sive criteria that reframe the very law faculty passed by way of a graduate the study of law with much more formal grounds of inclusion and exclusion. degree (typically a thesis LL.M.) rather education — several already holding MA than through private practice as had and Ph.D. degrees. And still again, many 21. The neo-colonial experience of grad- been previously the case. Beginning in more students have had international uate education in constitutional law is the early 1970s, however, a further pedi- experience working with “human rights” increasingly being pursued in the United gree came to define suitability for a teach- NGOs in Africa, South America and States rather than the United Kingdom. ing appointment. Even though many South Asia. Yet this changing cohort has Until the 1960s the number of Canadian more professors now have doctoral the vices of its virtues. An increasing law teachers was relatively small. degrees, it is the judicial clerkship (and number of students today are cause ori- Moreover, throughout Canada the bulk especially a judicial clerkship at the ented — but not in the manner of the of constitutional law teachers (Bora Supreme Court of Canada) that has power-contesting idealists of the 1960s. Laskin and Albert Abel being notable become a ticket to a career as a legal aca- Many with experience in an NGO have exceptions) had pursued graduate studies demic. Implicitly, the recruitment of noticed that those with law degrees wield in the UK, if at all. A survey conducted a judicial clerks and the promotion of judi- disproportionate organizational power decade later found, however, that the cial clerkships among students as indica- and imagine legal knowledge as an all- tide had shifted: most young public law tors of merit reinforce the notion that the purpose tool. Having already decided professors had studied in the US, while judiciary lies at the centre of the legal what is “right,” they approach the study most private law professors did graduate enterprise. Admittedly, many passionate of law demanding access to the “keys” work in the UK. Since 1982, the US gen- academic Charterphiles did not serve as that will enable them to bend others to uflection has increasingly dominated clerks, and several innovative and inter- their will. As student aspirations reveal constitutional law scholarship. The styl- esting neo-institutionalist law teachers themselves as increasingly consumerist, ized doctrinal conflicts between original- did. Nonetheless, within law faculties the legal education itself becomes instrumen- ists and interpretivists and the simplistic reality of constitutional law is generally talized. Teaching and learning law as a left-right framing of US political debate perceived by students to be Charter litiga- way of being alive — as a way of pursu- have come to mute the rich strands of tion. Today, writing memos to cabinet, ing a life worth living — no longer fires organicism in Canadian political and drafting legislation and regulations, and the pedagogical imagination. constitutional thought. Graduate stu- planning governance through contract, dents from Canada have been quick to taxation, subsidy, public-private partner- 24. In the framing of legal practice, a adopt the dominant liberal intellectual ships or the creation of new torts do not conception of law as grounded in propo- paradigm, and seem strangely uninterest- constitute a significant part of the consti- sitional ethics has displaced the notion ed in the developing civic republican tutional law course syllabus. of law as grounded in virtue. A central strand of US constitutional scholarship. feature of legal education in the era prior Hardly a surprise, then, that in the con- 23. Most law students are highly instru- to the establishment of university-affili- stitutional law teaching canon, Burkean mental in their approach to legal educa- ated faculties of law was the mentorship “red Toryism” is now just a memory and tion and its contribution to their future provided by senior lawyers to their arti-

82 OPTIONS POLITIQUES FÉVRIER 2007 Post-Charter legal education: does anyone teach law anymore? cling pupils and junior associates. equal place as contributors to the have also been suckled on the milk of Learning law was as much about learn- shaping and achievement of human Charter analysis. How law professors ing the role of a lawyer as it was about aspiration. Historically, governments teach and what they teach mightily learning rules. When university-based subsidized self-directed and community- shape the attitudes, ambitions and aspi- law faculties assumed a larger place in based initiatives; through the 1960s and rations of their students. These aspira- legal education — in part because senior 1970s, however, these unofficial institu- tions will then influence how students lawyers were either unwilling or unable tions of social solidarity were gradually understand law for their entire careers. to provide that mentoring, or if willing displaced by state agencies and spending We are all the creatures of our time and able were hardly role models — the programs. Now, a sense of economic enti- and place, in an infinite regression back- learning of rules of law came to occupy a tlement and a public resistance to eco- wards. As a student of law teaching as larger place in the teaching endeavour. nomic redistribution have compromised practised in the late 1960s, I know that At the same time, because the intensive the state’s capacity to tax and spend for my legal world-view was shaped by a mentoring relationship was not feasible universal social programs. When govern- generation of professors educated 15 to for professors, faculties acknowledged ments cannot spend money as a policy 20 years earlier, just as I know that how I the need to “teach” legal ethics. Not sur- instrument, they spend law. In legal edu- understood the coming of the Charter prisingly, within the university context, cation this translates into the belief that 15 to 20 years later cannot be dissociated this teaching imagined ethics as the mas- all social problems can be cured by the from that 1960s experience. For law tery of a set of universal propositions of enactment of legislation declaring them teachers of more recent generations, the proper behaviour set out in, for example, cured. It also produces the inverse belief. Charter has become more than just the a code of professional conduct. Also not If a particular social ill has been cured, it constitutional document it is for me. It is surprisingly, the teaching of these “ethi- is because law (and particularly the an icon for law and for legal education. cal rules” involved the same rhetorical Charter) has so declared it. No longer do Whether or not changes to law gymnastics as the teaching of “rules of law teachers insist that students interro- teaching over the past quarter-century law.” Today law teaching based on the gate the relationship between law and actually find their efficient cause in the virtue of being a good lawyer and citizen social change. No longer do they chal- Charter, “urban legend” holds this to be has largely abandoned itself to the siren lenge students to resist the facile deriva- the case. Until each of them is held up to song of propositional ethics. Only rarely tion of causation from mere correlation. critical scrutiny we shall never know. do law professors commit themselves to Nor will we be in a position to judge if an ethical mentoring role that requires ince the advent of the Charter in the second generation of Charter schol- students to engage directly with the S 1982 there have been significant ars who are just now entering the law demands of virtue. changes to legal education within teaching profession aim to chart a peda- Canadian law faculties. Why are these gogical course from their immediate 25. Modesty in the claims for law as an changes worthy of comment in a 25th predecessors whose careers began in the institution of governance no longer char- anniversary celebration of the Charter? first flush of Charter enthusiasm. Hence acterizes law teaching. A central feature Today’s law students are tomorrow’s the importance of attending to the cen- of classical legal education was modesty judicial clerks, lawyers, legislators and tral components of contemporary legal education in Canada — its We are all the creatures of our time and place, in an infinite professors, its students, its regression backwards. As a student of law teaching as practised doctrinal and substantive in the late 1960s, I know that my legal world-view was shaped content, its methodological by a generation of professors educated 15 to 20 years earlier, presuppositions and its philosophical commitments just as I know that how I understood the coming of the Charter — and to the way in which 15 to 20 years later cannot be dissociated from that 1960s these components have experience. For law teachers of more recent generations, the changed over time. Absent Charter has become more than just the constitutional document such an inquiry, we shall not be in a position to answer the it is for me. It is an icon for law and for legal education. question posed in the sub- about lawyering. The formal law of judges. Almost half the practising bar in title to this essay, for we shall have no Parliament and the courts was conceived Canada learned the Constitution Act, conception either of teaching or of law. as only one of the many normative insti- 1982 alongside the Constitution Act, tutions of a healthy political community. 1867; already Parliament is populated by Roderick A. Macdonald is F.R. Scott Other organizations such as religious many MPs who attended law faculties Professor of Constitutional and Public bodies, charities, clubs, voluntary associ- after 1982; several superior court judges Law and former dean of law at McGill ations, communities and families had and a handful of appellate court judges University.

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