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This Manuscript Has Been Reproduced from the Microfilm Master. UMI Films This manuscript has been reproduced from the microfilm master. UMI films the text directiy from the original or copy subrnitted, Thus, some thesis and dissertation copies are in typewriter face, while others may be from any type of cornputer printer. The qualiîy of this reproduction is dependent upon the quality of the copy submitied. Broken or indistinct print, colored or poor quality illustrations and photographs, print bleedthmugh, substandard margins, and irnproper alignment can adversely Mect reproduction. In the unlikely event that the author did not send UMI a camplete manuscript and there are missing pages, these will be noted. Also, if unauthorized copyright material had to be removed, a note will indicate the deletion. Overske materials (e-g., maps, drawings, charts) are reproduced by sectioning the original, beginning at the upper left-hand corner and continuing from left to right in equal sections with small overlaps. Photographs inciuded in the original manuscript have been reproduced xerographically in mis copy. Higher quality 6" x 9" black and white photographie prints are available for any photographs or illustrations appearing in this copy for an additional charge, Contact UMI directly to order. Bell & Howell Information and Leaming 300 North Zeeb Road, Ann Arbr, MI 48306-1346 USA ENLIGHTENED POSTMODERNISM: SCOTTISH INFLUENCES ON CANADA'S LEGAL PLURALiSM Ellen Anderson A thesis submitted in conformity with the requirements for the degree of LL.M. Graduate Department of Law University of Toronto Copyright by Ellen Anderson 1998 National Library Bibliothèque nationale du Canada Acquisitions and Acquisitions et Bibliographic Services services bibliographiques 395 Wellington Street 395. nie Wellington Ottawa ON K1A ON4 Ottawa ON KIA ON4 Canada Canada The author has granted a non- L'auteur a accordé une licence non exclusive licence allowing the exclusive permettant à la National Library of Canada to Bibliothèque nationale du Canada de reproduce, loaq distribute or sell reproduire, prêter, distribuer ou copies of this thesis in microform, vendre des copies de cette thèse sous paper or electronic formats. la forme de microfiche/nlm, de reproduction sur papier ou sur format électronique. The author retains ownership of the L'auteur conserve la propriété du copyright in this thesis. Neither the droit d'auteur qui protège cette thèse. thesis nor substantial extracts fiom it Ni la thèse ni des extraits substantiels may be printed or othenvise de celle-ci ne doivent être imprimés reproduced without the author's ou autrement reproduits sans son permission. autorisation. ABSTRACT ENLIGHTENED POSTMODERNISM: SCOTTISH INFLUENCES ON CANADA'S LEGAL PLURALISM LL.M. thesis 1998. Ellen Anderson, Faculty of Law, University of Toronto. Scottish immigrants to Canada irnported Scottish Enlightenment philosophies of moral sentiment, giving rise to indigenous philosophies of common sense that coalesced in a distinctive (if amorphous) Canadian comrnunity state of mind between about 1850 and 1950. During the premodern era when philosophy was largely interna1 to law, these Scots dominated the historic development of Canadian political, religious, economic, educational and legal institutions -- especially law schools. Exploring legal ideology in relation to modernity and postmodernity reveals why modernism's advent precluded any self-conscious Canadian history of legal theory. Legal postmodernism, defined as fragmentation of the legal subject and corresponding indeterminacy of legal meaning, both embraces modernism and sustains affinities with traditional Scottish Enlightenment thought. Out of its Scottish heritage, Canada (the world's first postmodern state) has evolved a largely unconscious and comrnon sense postmodern legal ethics which is revealed in contemporary Canadian legal theory and epitomized by our contextual Charter jurisprudence. ENLIGHTENED POSTMODERNISM: SCOTTISH INFLUENCES ON CANADA'S LEGAL PLURALlSM Table of Contents Introduction PART 1: CULTURAL CONTEXTS 1. Some 1 ntroductory Aspects of Legal Pluralisrn 2. An Overview of Early Scottish Immigration Patterns 3. Scottish Cultural Values and the Nineteenth Century Mind (a) Commerce and the Religion of Work (b) Scottish Law: Scholarship, Equity and lnternationalism (c) Scottish Education: Pragmatic Academics PART II: SCOTTISH ENLIGHTENMENT PHILOSOPHIES 1. Pluralism and Amateurism 2. Philosophies of Moral Sentiment (a) Francis Hutcheson: Benevolence and Social Distance (b) David Hume: A Profoundly Moral Skepticisrn (c) Adam Smith: The Ethics of Economics 3. Philosophies of Common Sense (a) Thomas Reid: Common Sense as Defence to Skepticism (b) Dugald Stewart: Revealed Psychology (c) Thomas Brown: Intuitions of Causation (d) Sir WilIiam Hamilton: Common Sense Kant PART III: CONTEXTS OF EARLY LEGAL EDUCATION IN CANADA 1. The lnternality of Philosophy to Law 2. Upper Canada: Common Sense and Speculative Idealism 3. The Maritimes: An lntegrated Tradition 4. Quebec: Pluralities of Mixed Jurisdiction 5. Ontario Again: lronic Modernities iii PART IV: BRIDGINGS: RECONSTRUCTING THE HISTORY OF LEGAL THEORY p. 140 1. The Effects of Modernism on Legal History 2. Theories of Legd ldeology 3. Speculation and Risk 4. Baker's Legal Pantheism 5. Contingent Theorizing PART V: MORAL SENTIMENT, COMMON SENSE AND POSTMODERNISM p. 175 1. Modernity versus Postmodernity 2. Postmodern Legal Subjects and indeterminacies of Meaning 3. The Scottish Enlightenrnent and Postrnodernism: Theoretical Links 4. Postmodern Ethics: Dissolving Academic Boundaries PART VI: CANADIAN LEGAL POSTMODERNISMS p. 214 1. The Unbearable Postmodernity of the Project 2. Exemplary Postmodernists: Coombe and Hutchinson 3. The Limits of Freedom to Reject Postmodernity 4. A Few Postmodernly Provisional Conclusions INTRODUCTION WiIfrid Laurier got it wrong when he said that the 20th century rnight belong to Canada. Instead, Canada belongs to the 21st century. We are the world's first postmodern state.' So wrote Richard Gwyn in a 1995 book which he didn't cal1 Lament for a Nation, but might have done had that title still been available. His Nationalism Without rWalls subtitied The Unbearable Liqhtness of Beina Canadian, is an extended diatribe bemoaning our newiy ballastless Canadian society cut adrift frorn the English Canadian culture which in his view had been its weighty centre. Gwyn does not like Canada's import of American-style transnational capitalism. He rejects our Charter-fuelled preoccupation with rights and entitlements as a displacement of more radically Canadian virtues of duty and responsibility. And (despite his genuine appreciation for Canadian traditions of interracial tolerance) Gwyn also expresses considerable resentment for liberal policies of immigration and multiculturalism which he thinks have helped foster the fragmentation of Canadian society into special interest groups demanding instant equality on race and culture 1 Richard Gwyn, Nationalism Without Walls (Toronto: McClelland & Stewart, 1995) at 243. In the text of Chapter 14, which he calls "Postmodern Dominion", borrowing the phrase from a 1992 speech on citizenship at a University of Ottawa confermce by Robert Fulford, Gwyn sketches out the evolution of the idea that Canada is becoming a postmodern society from the following sources: Frank Davey, Post-National Arguments, The Politics of the Analophone-Canadian Novel Since 1976 (Toronto: University of Toronto Press, 1993); Robert Fulford, "A Post Modern Dominion: The Changing Nature of Canadian Citizenshipn, in Beloncrinq: The Meanins and Future of Canadian Citizenship, ed. William Kaplan (Montreal : McGill-Queen's University Press, 1993); Linda Xutcheon, "As Canadian as Possible . Under the Circumstances" in The Canadian Essay, eds. Gerafd Lynch and David Rampton (Toronto: Copp Clark Pitman, 1991 1; Bruce Powe, A Tremendous Canada of Licrht (Toronto: Coach House Press, 1993); and Stephen Schecter, Zen and the Art of Post-Modern Canada: Does the Trans-Canada mhwav Always Lead to Charlottetown (Montreal: Robert Davies Publishing, 1993). Mentioned in the text but not included in the notes is Linda Hutcheon's seminal work, The Canadian postmodern: a studv in contemporary English Canadian fiction (Toronto: Oxford University Press, 1988). and gender issues. There are ironic indicators in this work, especially the blurring of scholarly analysis with personal anecdote in a typically postmodern fusion of the academic and the popular, that Gwyn himself is deeply ernbedded in the postmodern culture he deplores. But "mainstream" postmodernism has been widely condemned for its ludic nihilism and its indifference to ethical imperatives or political agendas. Gwyn's voice betrays no such despair or indifference. He unmistakeably thinks it is both possible and necessary for us to choose a different direction for our society, and he wants us to try. This kind of single-minded ethical imperative is something which has been traditionally associated with the rational, autonomous agency of the Iiberal humanist subject, and generally with modernist (rather than postmodernist) cultural phenomena. In law, formalist legal theory has claimed itself to be the enduring locus of ethical concern with its focus on corrective justice in the modernist, bipolar adversarial system. But the individual legal subject has also persisted through al1 of the attempted twentieth century reforms of formalism from realism to positivism to the critical legal studies movements, only to fragment and decentre itself in much of postmodern legal
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