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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

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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

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

3. Philosophies of Common Sense

(a) Thomas Reid: Common Sense as Defence to Skepticism

(b) Dugald Stewart: Revealed Psychology

(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 the~ry.~

In this paper, 1 propose to explore Canadian legal postmodernism as a

2This idea is developed at length in Pierre Schlag, "The Problem of the Subject" (1991), 69 Texas L.R. 1627, in which Schlag also describes the efforts of the legal forrnalists of the 19th century to eçtablish law school education as a university-level science with legal academics occupying a position of central doctrine-generating authority. I will further consider both of these points in their Canadian contexts below. 3 cultural phenomenon incorporating a multiplicity of moral sensibilities derived (at

Ieast in part) from philosophies of common sense that have their origins in the

Scottish Enlightenment. I consider how these attitudes were transplanted into

Canadian institutions with Scottish immigration in the eighteenth and nineteenth centuries where they endured long after the Scots had dwindled numerically into a cultural minority. But, as Joan C. Williams has put it, we need "thick description, from which intellectual currents emerge as a complex of overlapping tendencies, arguments and outl~oks"~to explain this phenomenon as a mental structure evolving out of a particular cultural history.

I am interested in a somewhat ephemeral variant of Iegal history and legal theory, a variant which has to date been described at considerable length in some of the academic writing we will consider4 but not yet much put into practice. In attempting here to enact this approach (which is, itself, recognizably a product of postrnodern culture) I will focus on the recreation or evocation of the Canadian state of mind between about 1850 and 1950. l want to consider the effect of that state of mind on the evolution and the interpretation of formal and informal legaf conventions then and now: what do common sense philosophy and postmodernism have in common? In order to get started on retracing the journey back, it would also be useful to map out a preliminary description of where we are in the present

3See Joan C. Williams, "Culture and Cenainty: Legal History and the Reconstructive Project" (1990), 76 Virg. L.R. 71 3 at 71 7: Williams credits C. Geertz, in The lnter~retationof Cultures 19 (1973) for the term, "thick description".

4~eePart IV, infra, for further discussion of this approach as set out by Louis Knafla. Susan Binnie and other legal historians and theorists. 4 by considering what is meant by the extremely arnbiguous and often reviled term,

"postrnodernism".

Part of the reason why postmodernism has been so resistant to precise definition is its rejection of scientific categorization as the sole hallmark of intellectual activity. The postmodernist trespasses across traditional boundaries separating the personal from the academic, the private from the public, the autonomous and rational self from the multiple and only partially comprehensible other. The postmodernist points even to the contextual blurring of factual truth in a particular situation if that same fact is reconsidered from the perspective of alternative points of view in other situations, precisely because (and the postmodernist is conscious of the paradox in that "precisely") postmodernisrn includes and subverts the modernist tradition which identified scientific analysis with the act of distinguishing through dichotomy. Clearly, this is an aspect of postmodernism which will have particular salience within the arena of legal facts, legal texts and legal subjects.

Postmodernism has stoutly refused to establish its own legitimacy either as an intellectual phenomenon or as an ethical phenomenon by sustaining demonstrable and consistent difference from the modernism it has succeeded.

This means that postmodernists (al1 those of us living within postmodern societies) are still also modernists, and still struggling with the delusion that it is possible, in the rnodernist tradition of the autonomous choosing agent, to reject the postmodernisrn within which we are immersed. But the postmodernist 5 fragmentation of the liberal humanist subject challenges the very assumption of sovereign autonomy on which our legal concepts of agency, intentionality and accountability are based.

We are also still struggling with the modernist prejudice that only universalizing norms, the Kantian categorical imperative, can be truly moral norms.

Some postmodernists reassure us that a postmodern indeterminacy of self need not necessarily entail a slide into moral relativism and nihilistic despair. We can look instead to a more subtle and satisfying diversity of provisional truths generated from a multiplicity of points of view which will Vary contextually, depending upon the circumstances and the vantage points from which a particular ethical dilemma is ~onsidered.~And in fact this kind of ethical flexibility corresponds much more closely to Our own introspective experience with the contingent shiftings of values, without relinquishment of principle but also without simplistic adherence to arbitrarily imposed rules, when we feel that we are functioning at our best as moral agents.

From the perspective of legal histories, legal structures, legal theories or legal practices, can we find evidence that Canada is indeed the world's first postmodern state? If we could, would that be (in the face of Gwyn's gloomy

'~onsidered at greater length, infra Part IV, are various writers who have explored this moral multiplicity. See, for example, Hans Bertens, "The Postmodern Weltanschauung and its Relation to Modernism: An lntroductory Surveyn in Approachinq Postmodernism eds. Douwe Fokkema & Hans Bertens (Amsterdam and Phiiadelphia: John Benjamins Co., 19861; Barbara Herrnstein Smith, Continqencies of Value, Alternate Perspectives for Critical Theorv (Cambridge: Harvard University Press, 1991) at 56-7; and Michael M.H. Fischer, "Autobiographical Voices (1,2 3) and Mosaic Memoryn in Autobiography and Postmodernism ed. Gilmore (University of Massachusetts Press, 1994) 6 diagnosis) a good thing or a bad thing, or merely a confirmatory description? Are there any particularly Canadian variants on legal postmodernisms which are not so evident in the legal postmodernisms of other legal cultures and their theorists?

In this very preliminary study, I propose to erect a signpost flagging multiple pathways for further exploration and to sketch out a map predicting what might be found down some of those paths. Without denying that Canadian legal structures and practices are still largely modernist, I want to paint a few vignettes of illustrative specimens documenting how Canada is evolving towards postmodern legal procedures. Some of the techniques of legal historiography and legal pluralism can be useful tools in demonstrating that Canadian legal history was not shaped solely by English legal history or by French civil tradition, in Quebec, but inevitably modified also by Scottish cultural values. I will begin by looking to the historical fact of the overwhelming dominance of Scottish immigrants in establishing the economic, educationaf and legal noms and institutions of this country.

The eighteenth century Scottish Enlightenment had produced not only a nation renowned for its academic and professional philosophers but a society in which philosophical values were popularly debated and integrated within many social institution^.^ 1 will posit that this meant Our Scottish immigrants (regardless

6We will look briefly at some of the key tenets of eminent Scottish philosophers of the Enlightenment, including Francis Hutcheson, David Hume and Adam Smith, and more particularly at the transmission of this tradition in the structuring of Canadian educational institutions. But what is even more significant is the Scottish tradition of philosophy and the optimistic belief that ideas are a matter of nation-wide concern for ordinary people because ideas can make a difference; see, for example, George Eider Davie, A Passion for Ideas, Essays on the Scottish Enlishtenment (Edinburgh: Polygon 7 of their social class or occupation) were irnbued with a more-or-less conscious understanding of and commitment to Scottish Enlightenment philosophies of moral sentiment and common sense with their Aristotelian underpinnings of intertwined practical and philosophical wisdom. Tracing out some of these philosophical doctrines as they were subsequently taught in Canadian schools and universities and then adapted and absorbed into Canadian social and political experience can help us understand how the postmodernism of contemporary Canadian law reveals its Scottish Enlightenment antecedents.

Adam Smith is probably the best known of the Scottish Enlightenment philosophers. Although in the United States his economic theory has been distorted by the Posnerian law and economics school, Smith posited a deeply moral but dynamic evolution of law and society. Smith thought that law changed in accordance with changes in social consensus and that social consensus in turn changed in accordance with the law7; he was interested in Our reflective and introspective understandings of the multiplicity of the self in various contexts and the fluctuation of meanings which arise out of that interna1 multiplicity.

Indeterminacies of self and indeterminacies of meaning: these are the two key ideas which form the substratum of the Scottish Enlightenment and the two ideas rnost compatible with the fluctuations and indeterminacies of postrnodernism,

Press, 1 994 at 1 and folIowing).

7 For a discussion of this aspect of Smith's thought, see Jerry Evensky, "The Role of Law in Adam Smith's Moral Philosophy" in Adam Smith and the Philosophv of Law and Economics, eds. Robin Paul Malloy and Jerry Evensky (Dordrecht: Kluwer Academic Publishers, 19941, generally and at 21 1. 8 but without the cynicisrn or chaos for which postmodernism has been condemned.

We need to look to other philosophers for other landmarks bridging elements of

Scottish Enlightenment philosophy and postmodern theory to demonstrate the evolving and distinctively ethical postmodernism of Canadian legal structures. The overarching structure of our charter8 and its developing jurisprudence dominates out- legal landscape now, and it is helpful to consider the Charter as a postmodern statute, but it will also be necessary to specify (in so far as postmodernism admits of any specificity) other distinctive features of our postmodern legal geography.

Public architecture as built ethos has throughout history signalled changes in social consensus. An eclectic architecture of Romanesque and Gothic piety was the hallmark of Victorian Canada, employed almost universally for churches of

Presbyterian, Anglican, Baptist, Methodist and even Catholic denominations (where one might not very surprised to find it) but also overwhelmingly the choice for domestic, commercial, hospital, university, courthouse and parliamentary buildings.

Except in areas of rnarked United Empire Loyalist influence, there are relatively few colonial neoGreek temples or federalist neoRoman baths in Canada in comparison with American architecture of the same era.

SimilarIy, architecture was the first visible manifestation of the international postmodern movement. It evolved out of relatively lighthearted experiments with historical pastiche -- a reaction against the sleek, modernist glass box towers which

'part I of the Constitution Act, 1982, being Schedule B of the Canada Act (1982 U.K.), 1982. c. 11 ("The Charter"). For further discussion of the Charter as a postmodern statute which has evoked a postmodern jurisprudence, see infra Part V. had corne to symbolize Stern scientific rationality and its CO-optationby capitalismg. Canadian architecture has both anticipatedl0 and followed the trend, contributing what some consider a distinctively Canadian postmodern vernacular of atrium spaces.I l

It is my contention that a cornrnon sense Canadian postmodernism is derivable from elernents of the Scottish Enlightenment philosophies which perrneated nineteenth century Canadian culture and which spread far beyond the confines of its natural Presbyterian locus to become visible in a pervasive and secular neoGothic architectural style. In this context, there is no contemporary architecture more quintessentially Canadian than Moshe Safdie's postmodern

Gothic National Gallery in Ottawa or the flying buttresses of Eberhard Zeidler's exuberantly extravagant headquarters for Confederation Life in Toronto

(cornmissioned in the eighties, before its equaliy spectacular financial crash.) But it cannot be sirnply coincidental that most of the major Canadian law firms are still barricaded within the rnodernist citadels typical of Bay Street.

On the international scene, following these architectural experiments, literary

'~ee,for example, Charles Jenks, The Lannuase of Postmodern Architecture (London: Academy Press, 1977 and What is Postmodernism? (London: St. Martin's Press, 1986)

'Olt would be interesting, for exampie, to consider the distinctively Canadian motifs appiied to a relatively conventional Beaux Arts structure characteristic of architect John M. Lyle 1872-1945 (son of an "Ulster Scotn Presbyterian minister who ernigrated to Canada in 1878) as illustrative of an early Canadian trend to "enlightened postmodernism"; see Geoffrey Hunt, John M. Lvle, Toward a Canadian Architecture (Kingston: Queen's University Press, 1982)

11See William Bernstein and Ruth Cawker, Contem~orarvCanadian Architecture (Toronto: F~zhenry & Whiteside, 1992 and AdeIe Freedman, Sicihtlines: Iookins at architecture and desicin in Canada (Toronto: Oxford University Press, 1990). theory quickly came to dominate the postmodern fieldt2. Because language is necessarily implicated in al1 cultural activities, postmodernism expanded beyond the boundaries of textual analysis into every field of academic study. In particular through her explication of irony, but also through a multiplicity of other postmodern subjects and analyses, Linda Hutcheon has documented the evolution of a characteristically Canadian postmodern fiction at the same time that she has established herself as a towering figure in international postmodern thought13 -- a characterization she, with typically Canadian self-effacement as well as postrnodern denial of the centrality of any single subject, would undoubtedly deny.

Outside Canada, the specialized literature of postmodern legal theory has ballooned enorrnously in the last decade, perhaps even escalating in Pace within the past two years.14 But in an unconsciously ironic reinscription of the

12Some foundational studies of the postmodern approach to language, Iiterature and culture generally include: Jacques Derrida, The Languaqes of Criticism and the Sciences of Man: The Structuralist Controversv eds. Richard Macksey and Eugenio Donato (Baltimore, Maryland: Johns Hopkins University Press, 1970; Michel Foucault, The Historv of Sexualitv trans Robert Hurley (Editions Gallimard, 1976); Jean-Francois Lyotard, The Postmodern Condition: A Report on Knowledcie trans, Geoff Bennington and Brian Massumi (University of Minnesota Press, 1979); John McGowan, Postmodernism and its Critics (Ithaca, N.Y.: Cornell University Press, 1981); Jurgen Habermas, "Modernity versus Postmodernity" (1981), 22 New German Critique 3; A~proachincaPostrnodernism eds. Douwe Fokkema & Hans Bertens (Amsterdam/Philadelphia: John Benjamins Co., 1986); and Stanley Fish, Doinn What Cornes NaturaIly (Durham and London: Duke University Press, 1989)

13 See footnote 1; Linda Hutcheon is a University Professor at University of Toronto where she teaches in the Departments of English and Comparative Literature; author of over seventy published articles and a dozen or more books, Professor Hutcheon has written in Italian as well as English, been translated into Czech, French, Japanese and Portuguese and extended her interests beyond literary studies into the fields of politics, opera and disease.

14 It is no longer possible, as it was a few years ago, to list within a reasonable footnote length even the most significant of these works; however, a few representative texts by leading authors would have to include: Gillian Rose, Dialectic of Nihilism: ~ost-structuralismand law (Oxford: Basil Blackwell, 19841; Post-Modern Law ed. Anthony Carter (Edinbutgh: Edinburgh University Press, 1990); Postmodernism and Law ed. Dennis Patterson (Aldershott: Dartmouth, 1994); Deconstruction and the Possibilitv of Justice, ed. Drucilla Cornell, Michael Rosenfeld, David Gray Carlson (New York and London: Routledge, modernist adversarial system, most of these existing examinations of

postmodernisms and law can be joined into two parties: those who are opposed to

postmodern practice. as though it is possible to reject it, and those who advocate it for political ends, as though it is possible to coopt it."

The one piace where these two camps do seern to find common ground,

however. is in an unfortunate tendency towards self-referential obfu~cation'~.

1992); Leqalitv and illeualitv: semiotics, postmodernism and law ed. N. Richard Janikowki (New York: P. Lang, 1995); and Margaret Davies, Delimitins the law: ~ostmodernismand the ~oliticsof iaw (London: Pluto Press, 19961

150fthose in favour, a significant number have conscripted postmodern analysis to a particular political agenda. There are, for example, postmodern poverty law theorists such as Lucie White, "To Learn and Teach: Lessons from Driefontein on Lawyering and Powern (1988) Wisconsin 1O.R. 699. There is a significant body of postmodern legal literature on race culture issues, including Patricia Williams, "The Obliging Shell: An Informa1 Essay on Forma1 Equal Opportunity (1989), 87 Michigan L.R. 2128. And there is an enormous literature on postmodern feminist legal theory, including Drucilla Cornell, Beyond Accommodation: Ethical Feminism, Deconstruction and the Law (New York and London: Routledge, 1991); Mary JOFrug, Postmodern Leaal Feminism (New York: Routledge, 1992); and Dennis Patterson, "Postmodernism/Feminism/Lawn (1 992),77 Cornell L.R. 254. It is Linda Hutcheon's view, however, that postmodernisms generally are resistant to cooptation by politicizing strategists and that the reverse is also true because political agendas are obscured by a more purely postmodernist analysis: see The Politics of Postmodernism (London and New York: Routledge, 1989) at 152.

16Consider, for example, this example of "political legal postmodernistn theory from Costas Douzinas and Ronnie Warrington in "Antigone's law, a genealogy of jurisprudencen in politics, postmodernitv and critical leaal studies: the leaalitv of the continsent eds. Costa Douzinas, Peter Goodrich and Yufat Hachamovitch (London and New York: Pluto Press, 1994):

In general terms, philosophy has treated oppositions of principle or concept either as the inevitable preparatory step towards their eventual dialectical synthesis or as eternally circling and irreconcilable antitheses that constitute the subterranean "grammarn of action.

"Opposites fuse or remain in tension" might be a reasonable translation, and when translated is not an especially clever idea. Compare with this passage of more generally postmodern legal analysis from Jerry Leonard, Lecial Studies as Cultural Studies. a reader in (postlmodern critical theory (State University of New York Press, 1995):

the general idea here is to in a certain sense produce an open(ing) space for the contestation of cultural studies as an intervention in the discourses of world justice, Ibutl this formulation itself soon becomes intellectually unproductive in so far as it tends to suggest a vacuous "anything goesn pluralism under the very banner of the idea of "contestation". 12

The creation of this postmodern hermeneutic jargon is in itself a delightfully ironic and anachronistic remnant of the displaced high modernist tradition; as Neil Nevitte has suggested, the acadernic as high priest was a much more effective shtick for the purposes of evoking deference17 when post-secondary education was rarer.

Now it seems strangely antiquated to write about postmodernism in a style so far removed from the relaxed intermingling of the persona1 and the professional characteristic of postmodern culture as we [ive it. It is a little fike wearing legal robes. They look antiquated enough even for court, and it is no accident that they reinforce the continued assertion of the learned profession's own high priest fetish, with its highly ritualized language and procedure. However, imagine wearing the robe and using the same circumlocutions everywhere, including the hockey rink and the supermarket. And a great deal of postmodern legal theory, at least as it is written outside Canada, does sustain a comparably bizarre assertion of obscure and learned authority accessible only to the cognoscenti even when what is being discussed are legal issues -- torts, family law problems, breach of contract issues -- which in thernselves are very much the stuff of ordinary life.

What about Canadian legal theory: is there a distinctively Canadian Iaw and

"Postmodern inquiry has no neat boundaries", Leonard tells us; the coy round brackets and italics and quotation marks are his, but none of it adds much to the message which remains unredeemed from the vacuity he fears.

17See, generally, Neil Nevitte, The Decline of Deference (Toronto: Broadview Press, 1996) in which he profiles shifts in the Canadian identity, challenging Our easy assumptions that Canadians as a group exhibit greater tolerance than citirens of other societies and demonstrating that we are in fact less deferential to authority than many other societies. See also Michael Valpy, "The new, value-added Canadians" (Globe and Mail, Oct. 26, 1996) at 05 for an illuminating interview with Nevitte on these subjects. postmodernism movement? A survey of titles in recent Canadian legal scholarship indicates that the "porno" word is not, in fact, much used here: Rosemary

Coombel* and Allan C. ut ch in son'^ are among the few who will confess, at least on occasion, to the creeping incursions of postmodernity. Hutchinson says, for example, that his 1988 collection of essays, Dwellinq on the Thresholdz0, was

"not presented or intended as a postrnodern perspective on law and politics" and that he recognized oniy in hindsight that it "did represent some faltering and ingenuous steps toward such a theoretical p~atforrn".~' Nitya lyerZ2and Charles

~aylor~~are two Canadian academics whose work is generally recognized to be at the cutting edge of postmodern approaches to race and culture theory, and there are Canadian feminist legal scholars, such as Jennifer Nedelsky or Gillian Hadfield, whose tents have been pitched on the fringes of the overtly politicized camp. We

18 See, for example, Rosemary J. Coombe, "Finding and losing oneself in the topoi" (19951, 29 Law and Society Review 4 at 599, a critique of "Three Metaphors for a New Conception of Law: The Frontier, the Baroque, and the South" by the prolific Iegal postmodernist, Boaventura de Sousa Santos, at 569 in the same issue. These texts are discussed in greater detail in Part VI.

19 In "Doing the Right Thing" (1992) 26 Law and Society Review 4 at 773, Hutchinson provides a provocative analysis of another key text in postmodern theory, Joel F. Handler's "Postmodernism, Protest, and the New Social Movements" which was delivered as the presidential address at the annual meeting of the Law & Society Association that year and published at 697 in the same issue.

20~~lanC. Hutchinson, Dwellinn on the Threshold: Critical Essays in Modern Legal Thouaht (Toronto: Carswell, 1988)

21 Hutchinson, supra note 19 at 785.

22 See, for example, Nitya lyer, "Categorical Denials: Equality Rights and the Shaping of Social Identity" (1994), 19 Queen's L.J. 179.

23~har~esTaylor, "The Politics of Recognition", in Multiculturalism: Examininq the Politics of Recognition ed. Amy Guttman (Princeton University Press, 1994) 25. Taylor, however, is deeply ambivalent about postmodern culture more generally; see infra Part V for further discussion of Taylor as a Canadian postmodern philosopher. will consider sorne of their contributions below.

However, it is also my contention that an examination of representative theoretical texts by Canadian legal scholarç over a wide range of less politicized legal subject areas will reveal that many of those who do not identify themselves as postmodernists are, in fact, deeply engaged in postmodern theoretical approaches; I have in mind for further more or less brief consideration certain texts by Michael Trebilcock, Harnish Stewart, Ronald Daniels, Brian Langille and Karen

Knop. Indeed, if Canada is the first postmodern state and Our legal scholars are immersed in a postmodern culture, it would be much more astonishing if they had been able to hoist themselves out of this milieu (Fishes out of water") and create legal theory completely free from postrnodern influence.

In the meantirne, and in this introductory vein, it is interesting to ask why

Canadian legal academics so often omit to identify their own work with the postmodernist movement and why certain of them would react with horror to any ascription of postrnodern intent. One preliminary answer to that question can be inferred from noting how readable and approachable this body of Canadian legal scholarship usually is, especially in cornparison with some of the more turgid and

24 See Stanley Fish, supra note 1 1 at 140: [Bleing situated not only means that one cannot achieve a distance on one's beliefs, but that one's beliefs do not relax their hold because one "knows" that they are local and not universal. this in turn means that even someone. . . who is firmly convinced of the circumstantiality of his convictions wili nevertheless experience those convictions as universally, not locally, true. It is therefore not surprising but inevitable that at the end of every argument, even of an argument that says there is no end, the universalist perspective will reernerge as strongly as ever. [Elven though the self-reflective clarity of critical self consciousness cannot be achieved, the experience of having achieved it is inseparable frorn the experience of conviction. 15 incomprehensible texts from the international postmodernist scene. We Wear legal gowns but we have drawn the Iine at wearing wigs in our courts; if Nevitte is right about the Iimits of Canadian deference to authority and tolerance in general, there seem also to be Iimits on Our deference to postmodern hagiography and Our tolerance of postmodern hermeneutics.

At some level, our legal scholars may have avoided the postmodern label because they participate in a Canadian and Scottish-generated tradition which, while certainly not rejecting ideas, seeks more pragmatic applications of them. We can also consider the lack of awareness of how postmodern Canadian legal scholarship and legal practice has become just another symptom of what John

Ralston Saul has diagnosed as our "unconscious civi~ization"~'-- but without participating in his despair. Perhaps what Saul deplores as the decline of the individual and of democracy with the takeover of capitaiism and special interest groups might instead be viewed as a postmodern redefinition of the individual and a more cornmunitarian democracy; it is interesting that Saul invokes Adam Smith, properly understood, at several points in his very readable study.

And in this typical rejection of self-consciously obscure language, Canadians may again simply be ahead of their time. Consider the enraged reaction of the international coterie of high postmodern priests to New York University physicist

Alan Sokal's wonderfully postmodernist hoa~.'~Sokal wrote a deliberately

25~ohnRalston Saul, The Unconscious Civilization (Toronto: House of Anansi Press, 1995)

26 See Robert Fulford, "The post-modern hoax offers a glirnmer of hope" (Globe and Mail, June 5, 1996) at Cl. 16 pretentious piece called "Transgressing the Boundaries: Towards a Transformative

Hermeneutics of Quantum Gravity" in which he purported to present a "liberatory post-modern science" that clearly amounted to a complete nonsense once the text was translated from its postmodern jargon. But before he revealed the joke, Sokal succeeded in having this Trojan horse published by Social Text, the Duke

University journal of postrnodern studies founded by Stanley Fish himself, where it was first swallowed whole and accorded a suitably solemn and respectful response as a serious contribution to the postmodern debate. Fish, whose own work has betrayed a palpably malicious glee in exploding the doctrines of modernist universal truth and realist self-righteousness, was predictably furious when Sokal turned sirnilar weapons on his own fortress. There are commentators who believe that

SokaIrs ridicule spells the beginning of the end for the hegemony of postmodern herrneneutics as an end in itself. But for the most part, Canadian postmodernists did not get lost in that cul-de-sac in the first place.

If Canadian legal postmodernisms are just one aspect of a more generally postmodern Canadian community rnind, then it rnay be helpful to think about these postmodernisms in relation to Canadian architecture or literature as other, somewhat clearer and better evolved manifestations of the same phenornenon.

Buildings associated with Canadian postmodern architecture such as Eberhard

Zeidler's Eaton Centre or Doug Rylert's Innis College Residence, both in Toronto, offer functional spaces and popular meeting places. Although they include playful and exuberant elements, they are not mere exercises in whimsy like Charles 17

Moore's Piazza d'Italia in New Orleans where the joke has lost its edge as urban blight has taken over. Simiiarly, the Canadian fiction which Linda Hutcheon has identified as comprising an indigenous postmodern genre is readable and in fact widely read by ordinary people. Writers such as John MOSS, Carol Shields, Joy

Kagawa, Michael Ondaatje and Margaret Atwood are popular successes whose novels can be found in airport bookstores, not just on undergraduate syllabi or as subjects for obscure Ph.D. theses; Canadians rnay be tolerant, but there is very little tolerance of what Rick Salutin has condemned as "artrn~rk".~' And it seerns to me that the works of those Canadian legal scholars whom 1 would be prepared to tar with the postmodern brush are generally accessible, clear and pragmatically useful, with considerable power to illuminate both our law and Our culture more generally.

The common sense others have noted to be characteristic of our law2* is derived from the indigenous variants on common sense philosophy that are also apparent in our buildings and Our literature and Our other cultural institutions. The dominant legal ethos in this country may still be Kantian, modernist and formalist, just as the skyscreper remains the dominant architecture in which major Canadian law firms are housed. Nevertheless, the persistent impact of the Scottish

27 Rick Salutin, "Slavars clown show a snow job in more ways than one" (Globe and Mail, Jan. 23, 1998) at Cl.

'%ee James W. St. G. Walker, "The Canadian dream - delusion or inspiration?" in Ontario Lawyers Gazette (Nov.-Dec. 1997) at 27, an excerpt from a talk given to the Osgoode Society for Canadian Legal History in June, 1997 in which Professor Walker argued that the prevailing legal sensibility in Canadian Supreme Court judgments between 1914 and 1955 is one of common sense modifying explicit rules; see also Walker's book, Race. Riqhts and the Law in the Suprerne Court of Canada: Historical Case Studies (Toronto: Osgoode Society, 1997). 18 Enlightenment as its philosophy was taught here and absorbed within our cultural institutions for over a century was sufficient to mould a distinctively Canadian variant of pcstmodernism as part of our alternative and pluralist legal tradition.

This infusion of common sense has meant that we are sometimes postmodernist without intending to be so or recognizing that we are so -- Iike

Moliere's bourgeois gentleman who unconsciously spoke prose. Much of the time, our postmodernism is a pragmatic, sensible and contextually small-rn moral postmodernism that works quietly, without calling attention to itself. And on those occasions when Canadian postmodern legal theorists absoiutely cannot avoid exposing the scholarly foundations of their work and of necessity must engage in a complexity of language to communicate a corresponding complexity of ideas, they often do so with an irony and self-deprecation of tone which leavens the earnestness of the message.

Our Canadian postmodern irony acknowledges the multiplicity of moral positionings inherent within the message at the same time it underscores the necessity that there be some moral context. Canadian legal postmodernism is an inherently enlightened postmodernism. Our project here is to shed a Iittle Iight on some of its sources. PART 1

Cultural Contexts

1 Some lntroductory Aspects of Legal Pluralism

In 1949 when we arrived in Renfrew, Ontario, I recall the Burns supper held in our first January in Canada. Mr. Max MacOdrum, then president of Carleton University in Ottawa, proposed the toast to the immortal memory of Robbie Burns quoting poignantiy from his love songs, the tears pourhg unrestrained down his cheeks. We had haggis and bag pipes and al1 that! And I felt that the country to which I had corne was more Scottish than the one 1 had left behind!'

This was Bertha Wilson, first woman to be appointed to the Supreme Court of

Canada, describing her experience as a newly-arrived Scottish immigrant and twenty- six year old wife of a Presbyterian minister some five years before she attended law school at Dalhousie. Her brother, James Wernham, an earlier immigrant then teaching in Toronto, was to establish himself as a philosophy professor at Carleton some years after she and John Wilson arrived.

In 1949, Linda Bortolotti. the daughter of ltalian immigrant parents, would have been almost two. She jokes that she had begun to acquire her proper Canadian

Scottishness by osmosis out of Canadian culture even before her mariage to

Michael, in 1970, from whom she acquired her Scottish surname, Hutcheon, and long before she began her theoretical explorations of Canadian postmodernism.

My own surname, Anderson, belongs to me from birth to parents of English descent on my mother's side and mixed English and Scottish inheritance on my

l Bertha Wilson. "The Scotüsh Enlightenment: The Third Shumiatcher Lecture in 'The Law as Literature'" (1987). 51 Sask L.R. 2 251 at 255. 20 father's side. But although 1 am technically only a quarter Scottish, it was the

Scottish cultural values which pemeated my childhood of tarn o'shanters and porridge breakfasts, kilts and various kinds of improving lessons, recorded bagpipe music and the Scottish-inflected Canadian literature of Bliss Carman and Nellie L.

McClung. My father, a rural school inspecter, was a Highlander from Haliburton where the cemetery is full of the Scottish ancestors now commemorated in numerous histories of early pioneer life.2 He passed on to his children an often inconveniently stubborn cornmitment to duty and a Scottish determination to raise yourself by your own bootstraps through education; in fact the first reference I turned to when I began researching the history of Scottish immigration to Canada was the entry under

"Scottish Origin, People of. Early Settlemenf" in the 1958 edition of Encvclo~edia

Canadiana3which was bought for me and my sister by our parents when we were seven and ten. Despite what now looks to be a persistent and disproportionate

Scottishness in my own upbringing, 1 did not recognize it as such at the time. And I was astonished by the irrefutable evidence of the depth and the breadth of Scottish influence in the formation of national cultural experience which I uncovered after

2 See, for example, John S. Hulbig, Whis~erin_sPines, A Haliburton Heritacie (Kinrnount: Word Wizard Publications, 1993), a history written by my father's cousin. It describes (at 19) the struggles of my father, William Gillbard Anderson, and his sister, Lily, tu obtain higher education through scholarships and extension courses at Queen's University. There is a picture of my grandmother, Nellie Gillbard (for whom I was named) as teacher at the Hindon Hill School in 1893 before her rnarriage to my grandfather, George Anderson, a lumbejack who helped build the first corduroy roads throughout Haliburton County.

3 Encyclopedia Canadiana. The Encvclor~ediaof Canada (Ottawa: The Grolier Society of Canada, Lirnited, 1958). The "Sources and References" list appended to Bertha Wilson's wamly informal but very scholariy Shumiatcher Lecture (supra, note 1) was also an invaluable source of early and obscure leads, many of which could be tracked down in the stacks of rny quintessentially Scots-influenced undergraduate school, Victoria College at University of Toronto. 21 beginning rny research with that old source.

Richard Gwyn has identified English Canadian culture as bedrock to Canadian

civilization and lamented its loss. It is undeniably the case that, after 1759, the

English state had asserted itself to be the single goveming authority in the coalescing

colonies which were to become Canada. A limited deference accorded the French

civil tradition within Lower Canada for matters of local significance could be

considered even to underscore that authority and undoubtedly is, by Quebec

sovereigntists today. As legal historian M.B. Hooker has said, "lt is fundamental to the idea of the state that its institutions afone can be the source of law . . . as a set of

consistent principles, valid for and binding upon the whole populationn4. Looking only to political history, then (which is what traditionally was considered to be the single

unitary source of history), we would confidently anticipate a dominant English ethos.

However, a case can be made that for a hundred years or more Scottish values were

more pervasive than English or even French values across many more sectors of

Canadian society.

The original Scottish settlers in Canada sturdily adjusted themselves to their

allotted positions in their new land, with merchants and crofters and soldiers diligently

expanding the fur trade or administering colleges or presiding over the law courts as they were called upon to do. Similarly, once we have attempted to isolate them for

inspection, we will be able to see the persistence of Scottish values within our official

state law system and consider evidence that these values have survived through their

4~.~.Hooker, Leqal Pluralisrn: An Introduction to Colonial and Neocolonial Laws (Oxford: Clarendon Press, 1975) at 1. 22 pragmatic adaptation to new cultural realities so that they are still present (even increasingly reemergent) within contemporary legal structures and values. In

Canada, of course, the supreme state law since 1982 is our Charter, and I will argue that it is in its initiating structure and its substantive content a landmark of legal pluralism continuing to acknowledge new rnultiplicities of legal pluralisms through the development of its associated jurisprudence.

The relatively new doctrines of legal pluralism tell us that, even in circumstances where there are not two acknowledged founding nations5 and despite any avowals of neutrality and universality, state law is inevitably plural; moreover, state law in al1 societies becomes more pluralistic of necessity over tirne? If postmodernism generally look to the rnultiplicities of individual subjects and the multiplicities of interpretations of text, legal pluralism looks to the multiplicities of sources of law as they coexist in a single society's legal systems and are further supported by multiple elernents of legal ordering outside of the court systems, the legislatures and the legal academy. Legal pluralism acknowledges that the limits of

5 One of the major contn'butions of the Report of the Roval Commission on Aboriainal Peoples (Ottawa: Canada Communications Group Publishing, 1996) is its insistence on acknowledgement of aboriginal peoples as a founding nation and its disclosure of the oral traditions of law established by hem as a parallel legal system which mezits equal respect in the administration of justice; the Supreme Court Delsarnuukw land claims decision in late December of 1997 offers evidence that our judicial systern is consolidating its incremental incorporation of aboriginal justice principles as a pluralist source of Canadian law; see Delqamuukw v. British Columbia [A997 3 S.C.R. 925.

6See Sally Engle Meny, "Legal Pluralisrn" (1988) 22 Law and Society Rev.5 869 at 890. Merry's article provides a useful overview of the history of legal pluralism, tracing its origins back to the studies of Malinkowski in 1926 and focussing on the Iiterature of legai pluralism between 1978 and 1988. 23 objective inquiry make it impossible to fix historical tmth once and for al17, and draws on research by ethnographers, anthropologists, social historians and sociologists more generally to consider the ways in which ostensibly scientific historical records have already been shaped by the assumptions underlying the selection process detenining what is worth ~aving.~

The result of acknowledging a plurality of sources ought to beyone supposes, a different kind of writing about history and even a different kind of history-making.

This new historiography challenges concepts of continuity and causality in history?

It relinquishes the old consolation of the meta-narrative together with its neat evolutionary beginning, middle and end and its tidily traceable influences. The unitary meaning of history has given way to the amorphous, contextual and multiple rneanings of historiography, not without regret but out of necessity, because of the inescapable recognition that any historical truth is a myth generated by the perspective of the professional or amateur archivist who selected evidence for preservation and the historian who could only interpret that evidence from within the constraints imposed in turn by his own particular perspective. And, as Canadian philosopher Mark Kingwell has pointed out, historiography is not as new as we might think but actually finds its roots in the interdisciplinary approaches of William

7See Bany Wright, "An Introduction to Canadian Law in History" in Canadian Perspectives on Law and Society (Carfeton University Press: Ottawa, 1995) at 12.

8See Hayden White, who States that it is always an "illusion that a valueneutral description of the facts, pnor to their interpretation or analysis, is possiblen in The Fictions of Factual Representation", Tro~icsof Discourse (Johns Hopkins University Press, 1978) at 134. See also Dominick Lacapra, "Rhetorical History" in Histow and Criticism (Comell University Press, 1985).

'~utcheon,The Politics of Postmodemism op. cit. at 66. 24 Robertson, an influential scholar well known both within Scotland and internaüonally during the Enlightenment era1° although his histonographic methods were not more generally adopted for a century or more.

But as we will see in greater detail below, although Canadian legal historians have acknowledged the necessity and the value of adopting legal historiographic approaches and generally introduce or conclude their essays with several theoretical paragraphs in which they pay deference to pluralist sources. that has been as far as they go." The focus of Canadian legal history has been on reconstruction from archival sources of particular historical events of legal interest in isolation from any reconstruction of the community mind which gave rise to those events. What I am interested in here is an inversion of that convention; this paper concentrates primarily on the relationship between Scottish Canadian culture and legal ideology in the nineteenth century as a source of contemporary Canadian postmodernism, with concrete illustrations of this ideology correspondingly briefer.

10 See Mark Kingwell, "Politics and the Polite Society in the Scottish Entightenment" (1993) 79 Historical Reflections/Reflexions Historiques 3 363 at 376; Robertson was Principal at Edinburgh University after 1762, Moderator of the General Assembly of the Church of Scotland between 1763 and 1780, a rnember of the Select Society (where he knew Adam Smith and David Hume) and author of a Histow of Scotland (1759) and a Historv of the Reinn of the Em~erorCharles V (1769). In his own era, says Kingwell, he would have been as well known as Hume, Gibbon or Voltaire. The common sense philosopher Dugald Stewart, whose work is considered briefly in Part II, wrote a biographical essay about Robertson, "Account of the Life and Writings of William Robertson", published in London in 4801.

11See inh, Part IV; the work of University of Toronto legal historian R. C. B. Risk offers particularîy useful examples of this genre. 2. An Overview of Early Scottish Immigration Patterns

It is immediately apparent in reading histones of the Scots in Canada - and there are a great many of them12 -that the selection process historiography alerts

us to has been busily ai work. These accounts were not written by people like me,

barely conscious of their own inherent Scottishness. On the contrary, the nineteenth century authors offer as significant qualification of their expertise to do the writing the announcement that they themselves are the sons of Scotland . They are radiantly

proud of their Scottish origins, naively eager to assert the facts of Scottish contribution to Canadian life and unselfconsciously essentializing about al1 the virtues of the Scottish character in which their very diligence in compilation evidences they too participate. Rattray tells us wistfully that he has never been to Scotland; as the descendent of a Scottish immigrant, he wants to "show whence the strong, honest and persevering character of the Scot had its origin, and then to describe in detail

[four three hundred page volumes worth] what he has done for British North

~merica".'~Campbell hopes that his work "may have its share in giving to the

12 I have consulted the following references on general history of Scottish settlement in Canada (but there are more): W.J. Rattray, The Scot in British North Arnen'ca in four volumes (Toronto: Maclear and Company, 1880); Wilfred Campbell, The Scotsman in Canada in two volumes (London: The Musson Book Co., n-d.); J. Murray Gibbon, Scots in Canada (Toronto: Musson Book Co. Ltd., 1911); George Bryce, Scotsrnan in Canada Toronto: Musson Book Co. Ltd., n.d.. ca. 1911); James A. Roy, The Scot and Canada (McClelland & Stewart, 1947); W. Stanford Reid, The Scotüsh Tradition in Canada (Toronto: McClelland & Stewart, 1976) and Allen Andrews, The Scotüsh Canadians (Toronto: Van Nostrand Reinhold, 1981). Because the factual information contained in this selection is somewhat repetitive, I will amalgamate these sources in rny survey and cite specific sources only for interpretive variations where (rarely) they occur.

13 Rattray, ibid., at vi. 26 student of the history of the Scottish race some slight idea of the great part which had been played by that illustrious stock during the last three hundred years in the founding, peopling and upbuilding of Britain's Western Empire".14 Even as late as

1976. Reid finds only biblical cadence could adequately convey his sense of higher purpose; he wants to describe "the traits of character, the ways of thinking, the prejudices and the biases with which the Scottish immigrants came to this country and which they passed on their descendants even to the third and fourth generations". ''

One cannot help but suspect, as well, that the primary purchasers of such histories would have been the author's friends and relatives and the descendants of the Scottish Canadian immigrants included within the texts. Despite their bulk, these histories have a uniform tendency to devolve into lists of names conveniently categorized under various headings and uninflected with rnuch interpretation. It would be easy enough for the reader to turn to the appropriate section - businessmen, soldiers, politicians, educators, ecclesiastical leaders, writers and artists, lawyers and judges - and to find his own family name immortalized for posterity. As Wilfred Campbell informs us, "in Canada . . . there are few farnilies which are without a strain of the old Scottish blood in their ~eins"'~,and we can't help wondering if he is calculating optimistically his likelihood of solid sales.

14 Campbell, op. cit., pref.

15Reid, "The Scottish Backgroundn, in Reid op. cit. at 1.

1%Campbell, ibid., at 9. Before 1 begin to summarize that history of Scottish immigration, an explicit caveat is necessary. In an article on the history of self-regulation in Canadian law societies written in accordance with the historiographie principles of legal pluralism,

Wesley Pue has pointed out the importance and the difficulty of original archival research if Canadian legal historians are to avoid the perpetuation of bad mythl7.

Of course, I am here relying exclusively upon secondary rnaterials. Undoubtedly, new and more value-free research on the history of the Scots in Canada needs to be done, and I want to fiag my awareness of the limitations of my rather quaint and amateur sources. However, it is also the case that for Our purposes, objective proof of the fact of Scottish influence on the development of Canadian institutions rnay matter less than the evidence -- good or bad - that there was a compelling and persistent myth of Scottish influence shaping those institutions. The accounts provided by Rattray, Bryce, Campbell and even Reid illustrate how the processing of historical fact by persons enmeshed in a culture produces a kind of historical record which in itself confirms the shape in which that culture continuously reformulates itseif.

The histories we have for the most part begin with the account of Sir William

Alexander's failed atternpt at the settlernent of Nova Scotia by charter from James 1

17 W. Wesley Pue, "In Pursuit of Better Myth: Lawyers' Histories and Histories of Lawyers" (1995) 33 Alta. L.R. 4 730 at 765. On the other hand, it is also interesting to note that in his insistent focus on primary research (which Pue wanted to retrieve, at least in the first instance, by having various provincial law societies search it out and send it to him) he and the other legal pluralists rnay be seeking to replace the now- dishonoured objectivity and neutrality of history with an equally unattainable objectivity and neutrality of research methodology. Of the law societies Pue contacted, our own Law Society of Upper Canada (better funded and staffed than al1 the others) was cleariy the most obliging in supplying the requested information and one cônnot help but notice that Pue is correspondingly kinder in his evaluation of the Ontario daims of self-regulation. 28 in 1621, follow up with the defeat of the French at Louisbourg by Scottish general

James Murray in 1758 and then make reference to one Abraham Martin dit

L'Ecossais whose son, Eustache. was the tirst child listed on the post-conquest

Quebec birth registry and whose name has been given to the Battle of the Plains of

Abraham in 1759. In part because of the defeat of the Stuart uprising of 1746 with the subsequent displacement of tenant crofters in the Highlands of Scotland and a most inconvenient Scottish population explosion exacerbating conditions of grinding impoverishment at home. Scottish immigration began trickling steadily into British

North America in the 1760s. It picked up pace with Loyalist immigration from the

American colonies following the Declaration of Independence in 1776 and continued in a steady stream until the rnid-nineteenth century. By 1852 there were about

14.000 Scots-born immigrants in Lower Canada and about 76,000 in Upper Canada; this population had increased to over half a million persons of Scottish male descent

(the way census figures were then kept), comprising about 15.8 per cent of the total population, in 1871.

Two distinct types of Scottish immigrants came to Canada from Scotland.

Different geographic regions of the country tended to be dominated by largely heterogeneous groups of Highland or Lowland immigrants. Prince Edward Island (in

1772) eastern Nova Scotia (in 1773) and Glengarry (in 1783) were settled by

Highland Catholic Scots. with the second generation frequently retaining Gaelic as their prirnary language among themselves; the Lanark (1 820) and Galt (1827) settlements were comprised largely of Lowlanders, and the Selkirk (181 1) settlements 29 in the Red River by Protestant Highlanders w%h another large contingent of Scottish immigrants spreading west into the gold fields of the Cariboo in 1862.

During the early phases of Scottish immigration, different econornic sectors in

Canada also were dominated by heterogeneous groups. The Highlanders had come from a hard and insular life. scrabbling out their existence on their diminishing stony farms after the clearances. Because of their rnilitary courage and their uncomplaining tolerance of privation, the Highlanders were particularly in demand by the various land companies which sought out and sponsored settlers to participate in their land development schemes.

Although some Lowlanders emigrated with the support of settlement societies, they tended to be English speaking city dwellers. Many who came from Glasgow and

Edinburgh had ancestors who had been involved for a hundred years or so in trade and manufacturing; their entrepreneurial drive had been thwarted because Scotland lacked colonies to serve as export markets and their businesses were increasingly choked out by the English domination of commerce and the English merchant navy after the Act of Union in 1707. James McGill and Simon McTavish founded the North

West Company which was very heavily staffed by Scots who completed much of the early exploration of the country; it was Alexander Mackenzie for the Nor'Westers who was first to travel overland to the Pacific in 1793. The ernployees of the rival

Hudson's Bay Company. founded by charter from King Charles II in 1670 and merged with the Nor'Westers in 1821, had always been fifty per cent Scottish. Other

Lowlanders exploited their specialized skills in weaving or dying or shoemaking as 30 supplernent to their farm income until they could reestablish their economic interests in Canada.

Just as there are strong links between the developrnent of the textiles industry and the development of commercial banking in Sc~tland'~,so too could tight connections be traced between the fur trade and the development of the great banking and financial houses in Canada. The Bank of Montreal was founded by a

Scot; the Scots controlled the St. Lawrence timber trade and shipping enterpriseslg and Montreal became known as a city of a million Frenchmen ruled by a dozen

Scottish bankers." But, although language and dance and Scottish societies remained sig nificant social entities in early Canadian life, the Scottish traditions of social mobility meant that any class distinctions that rnight have existed at home between Highlanders and Lowlanders early on ceased to be of much importance in

Canada.

Canadian politics was closely linked with Canadian economic development and equally dominated by the Scots. The story of Sir John A. Macdonald, first prime minister of Canada, who brought about Confederation in 1867 by his somewhat dubious financing of the Canadian Pacific Railroad, has been well documented by

Pierre Berton in The National Dream, who wrote:

The Scots ran the country. Though they formed only one-fifteenth of the

"~avidDaiches, 'The Scottish Enlightenmentnin A Hotbed of Genius. The Scottish Enliahtenment 1730-1790 (Edinburgh: Edinburgh University Press, 1986) at 34.

19Andrews, op. cit.

" Encyclopedia Canadiana. op. cit v. 9 at 251. population, they controlled the fur trade. the great banking and financial houses, the major educational institutions, and, to a considerable degree, the government The CPR was built to a large extent by Irish nawies and Irish contractors; but t was the Scots who held the top jobs. Almost every member of the original CPR syndi~tewas a self-made man.21

George Stephen, Donald Smith and Sandford Fleming were among these self-made and highly political Scots." In fact, as Margaret Maclaren Evans pointed out in her

1976 study of Scottish Canadian politicians, although by 1941 only 12 per cent of the population was identifiably Scots or of Scottish origin, the Scots had sustained over a quarter of the seats in the House of Comrnons and on the Cabinet for a solid eighty

Rattray provides exhaustive lists of Scots Canadians in public life from coast to coast at the federal level between 1867 and 1882, noting that many of them were also lawyers". The same kind of listing for Eastern Canada occurs in Wilfred

Campbell's work2' and is provided for western Canada by George ~ryce.*~In order to understand why this was so, we need to pick up on Berton's use of the

23 Pierre Berton, The National Dream (Toronto: McClelland and Stewart, 1971) at 319.

22Andrews, op. cit,

23A. Margaret Maclaren Evans, The Scot as Politiciann in Reid, op. cit. 273 at 296. Evans cites a study of Richard van Loon prepared for the Commission on Bilingualism and Biculturalism in 1966, "Structure and Membership of the Canadian Cabinetn at 44-48 in support of this figure. She also points out that rnany of the first women politicians in Canada were Scots: Agnes Campbell Macphail, first woman elected to the House of Cornmons in 1921; Cairine Mackay Wilson, first woman appointed to the Senate in 1930, and Flora MacDonald, first fernale candidate for leadership of a national political party.

2.4 Rattray, op. cit. Vol. III Part II.

25 Campbell, op. cit. at Chap. XIX and XXVlll

26 George Bryce, op. cit. at Chap. XXVll and XXVlll 32 phrase, "a self-made man" and briefiy trace its origins.

Certain aspects of Scottish religious belief and Scottish philosophy already permeated the culture of the Scots immigrants when they amved here in Canada.

According to the historians we have been relying on so far, these values flavoured the establishment of educational institutions across sectarian lines and influenced

Canadian developments in philosophy and in law. We need a short detour (just as vulnerable to criticism from Pue's perspective for its use of suspect secondary sources as has been our survey of Scottish history in Canada) into Scottish history in

Scotland in order to trace out these connections." What can offer us some consolation here is that our quest again is not so much for the "truth" of these historical events as fact as it is an inquiry into documents recording the historical processing or interpretation of these occurrences. We are seeking instead to build a foundation of what Canadian legal historian Greg Marquis has called variously "legal culture in the broad sense . . . [and] evidence of popular opinion" or the "legal

27 At 764 note 166 of his 1995 paper, op cit, Pue promises a forthcorning book to be edited by himself and DeLloyd Guth entitied Canada's Lesal Inheritances and published by the University of Manitoba Press for its Legal Research Institute. One of the essays slated for inclusion is a piece by Guth, "Canada's Four Legal Inheritances", which is "aimed at reclaiming the history of Scottish influences on Canadian legal structures including the legal profession". Unfortunately, neither the book nor the article appear on any on- line search, the University of Manitoba Press tells me it has not been published, and Professor Guth has not responded to a phone message. Pue also mentions in the same footnote a "fniitFul exploration of Scottish influences on Amencan lawn by C. Paul Rogers Ill, "Scots Law in Post-Revolution and Nineteenth Century Amenca: The Neglected Jurisprudence" (1990) 8 Law & Hist Rev. 205. Rogers sketches out the patterns of Scotüsh immigration to the American colonies, lists various doctrines in Scottish Iaw which he can prove (from records of their libraries) were well known to early Amencan legislators and jurists, and then speculates as to why there is so littie evidence of direct transmission through citation of these doctrines in early American jurisprudence. Rogers concludes that the explanation lies in anti-English feeling after the Revolution which was exacerbated with the War of 1812. consciousness of the

3. Scottish Cultural Values and the Nineteenth-Century Community Mind

(a) Commerce and the Religion of Work

With the exception of Sir William Alexander's ill-fated attempt to establish a feuda! plantation as a New Scotland in 1621 - which was really a covert and undercapitalized attempt by Glasgow merchants to poach on English-controlled

Virginia tobacco business by pretending to take an interest in the Newfoundland fisheries trade -- al1 Scottish immigration to Canada occurred after the Act of Union between England and Scotland in 1707. Many of the early Scottish merchant immigrants to Canada had been dissenters, vocally unhappy about the domination of their society by the religious establishment at home and thus experienced with politics even before their arriva!?'

Scotland had had a strongly Calvinist Protestant tradition3' since the

28 Greg Marquis, "Doing Justice to 'British Justice': Law. ldeology and Canadian Historiography" in Papers Presented at the 1987 Canadian Law in Histow Conference (Ottawa: Carieton University Press) at 42 and 47. Unfortunately, despite the promising ütle and this useful insight, Marquis' paper assumes that British justice is solely English justice and does not provide any analysis of the contributions of Scottish law. This assumed assumption of Scottish law into English law is the kind of confiation which enrages T.B. Smith, whose book British Justice: The Scottish Contribution (London: Stevens & Sons Ltd., 1961) seeks to set the record straight.

29 See David S. MacMillan, "The Scot as Businessman" in Reid (op. cit. h.8) at 179.

30 I am relying here pnmanly on W. Stanford Reid's essay, The Scotüsh Protestant Tradition" in Reid, op. cit. at 118 and following. 34 establishment of the Presbyterian church in 1560 by John Knox. The church, with its own governance derived from a hierarchy separate from the state and itç own ecclesiastical courts or presbytery, declined to recognize the rnonarch as a spiritual

leader on earth. lnstead there waç an emphasis on persona1 responsibility and on the high moral seriousness of work.

The Scottish version of the Protestant work ethic was not merely a matter of

becoming wealthy in this world as a signal of election to eternal life in the next; there was rnuch less of the accumulation of consumer goods as an end in itself, such as

can be seen in the Calvinist-influenced Dutch Baroque stili life paintings with their

exotic tulip bulbs and lavish displays of food and wine. Instead, the good Scots

burgher was rneant to exercise his God-given abilities and to take initiative. He

should plan shrewdly, disciplining hirnself to a personal fmgality in order to store up

resources that could fund his acts of public generosity in a rnanner which would result

both in his personal spiritual improvement and in benefit for society as a whole.

But it is also the case that by the time of eariy Scottish immigration to Canada,

many Presbyterians had becorne dissatisfied with what they considered to be a

spiritual complacency and an increasing temporal power of the Presbyterian church

hierarchy and they were looking for a renewed evangelism which had begun to find

expression in a variety of religious sects. There were Scots Anglicans, Highland

Scots Catholics, the Ulster Scots contingent eventually giving rise to the Methodist

sect, and a Baptist Scots movement.

However, whatever their religious practises (and most Scottish immigrants 35 were still practising adherents of the Presbyterian kirk on their arriva1 in the British colonies of the eighteenth and early nineteenth centuries) the underlying Scottish values of frugality and hard work persisted. "The ethical and moral principles [had] been so imbedded in the individual[s'] personalit[ies] that they [were] still operating automatically", according to ~eid.~'Wilfred Campbell makes the same point when he writes that religion "was not mere observance of ceremony . . . [but rather] something vital in the very life of the people, which so affected their whole nature, their very character as a community . . . [and] perrneated national life"." And this is the reason. Rattray tell us, that so many distinguished Scots "rose from the humblest positions in life, to honour and distinction . . . struggl[ing] to prosperity and farne out of an atmosphere of poverty"." These interpretations help us to understand why class distinctions quickly evaporated in Canada and were replaced by a meritocracy based on achievement. given that there could be no status based on wealth alone or aristocracy alone. They also help us understand why, almost a hundred years after the last mass immigration of Scots to Canada, Bertha Wilson's first experience of

Canadian society was so overwhelmingly Scottish.

Al1 these qualities of the Scottish national personality were a point of pride before England imposed Union May 1, 1707. the only occasion in history when two sovereign nations united by means of a treaty. But the kind of achievement through

- - 31 lbid., at 134.

32 Campbell, op. cit. at 27.

33 Rattray, op. cit. vol. 1 at 196. 36 hard work valued by the Scots benefits from systernatic leaming, and law was the early locus for much of that educational effort.

(b) Scottish Law: Scholarship, Equity and Internationalisrn

It is important that we realize that the 1707 Act did not create British la# except at the heart of the Constitution. Scots law, based very largely on the Roman civil tradition and dating back to an alliance with France in 1295 (by which it had hoped to avoid annexation by Edward 1, and which helps to expiain the Scoth'sh affinity for Gothic style) had evolved an elaborate court system with a Court of

Session and College of Justice by 1532. Three Scottish universities offered studies in law, with Aberdeen particularly renowned as a centre of legal learning; students might follow up their studies further at Orleans, Bourges and Louvain. During the seventeenth century, 1,600 Scottish lawyers were systernatically trained in the law schools of the Netherlands at Leiden, Utrecht and Groningen. In addition to the church courts, there were feudal courts, civil courts for commercial disputes and criminal courts with trained advocates representing the parties in al1 arenas.

There was also an evolving legal literature with reported decisions and works on procedure by Balfour, Spottiswoode, Hope and Craig unlike anything dating from that period in English law. An Advocates' Library had been established in 1680 with current materials in Dutch and French law. There were Institutes of indigenous

34 I am relying here on T.B. Smith, supra. 37 criminal Scottish law as early as 1678 with civil. cannon and feudal laws codified by

Viscount Stair in 1681 and by George Mackenzie in 1684. Scotland was a full participant in the evolution of an international European mercantile law before Union, and as early as 1750 there was a Scottish bar which set, through its Faculty of

Advocates, examinations in Scottish law and civil law as a condition of practice. In

Scotland there was never the slavish adherence to precedent characteristic of the

English comrnon law system and in Scotland there were never separate courts of equity as in the English tradition before unification of the courts in 1873. The incorporation of equity is particularly apparent in Scottish criminal law where punishments were markedly less severe than in England; for example, there were only six capital sentences on average per year between 1767 and 1797 at a time when two hundred executions occurred on average in England.

Only after the French Revolution was Scotland significantly cut off from

European developments in law and isolated within the British Kingdom, subjected more and more to the far less scholarly and far less cosmopolitan English tradition and subjected as well to the professional arrogance of the English House of Lords when Scottish appeal cases were sent up. There is little question that, as David

Daiches has pointed out, law in Scotland became identified with Scottish national feeling.35 Many Scots believed and still believe that their native law was superior to the English law which has continually encroached upon it, despite the guarantees

35 David Daiches, Burns and His Worid (Edinburgh: Thomas and Hudson, 1971). granted in 1707.~~

Of course, law was not the only focus of study in the Scottish education system. Arnong the Canadian histonans of Scottish culture, we see Rattray describing the role played by women in educating their young within the home in both

Highland and Lowland from its earliest recorded history; he gives women full credit both for the establishment of the moral tone of Scottish society and for their contributions to public life where, he says, they always took an exceptional part from the earliest tir ne^.^^ Scottish society, says Rattray and others among the Canadian nineteenth-century Scots historians, did not reflect the traditional gendered split between the private and the public characteristic of other Western cultures at that epoch. Campbell makes the somewhat extravagant daim that the Scots traditionally

"had an intense craving for knowledge and learning not limited to the scholarly class alone, but . . . widely shared by the whole people to a greater extent than is found in

361t is interesting to speculate what will happen in Scotland aller May 6, 1999. when the independent national parliament which the Scots had been compelled to give up 298 years ago will be restored by election; there will be a systern of regional proportion with 129 mernbers and wide powers, including the right to mise taxes. See "U.K. fixes date for Scottish vote", Bame Examiner (Dec. 6, 1997) at 6. Perhaps then, in the context of the EEC, there will also be a concerted revival of Scottish law as the prototype for an international legal order which that champion of Scottish justice, T.B. Smith, always considered it to be. See T.B. Smith, op. cit,, at 228.

37Rattray, op. cit, vol. 1 at 168 and 182. 39 any other nation throughout the ~orld"~~.D.C. Masfers asserts that the quality of acadernic life in Scotfand "often reflected the influence of Scottish Calvinism [throug hl its rigorous intellectual discipline [which] tended to produce men with a capacw for sheer hard work and with a penetrating, critical spirit"."

But the preeminent historian of Scottish education is Scottish historian George

Elder Davie in his often-quoted work, The Democratic Intellect Davie outlines the long fies between the Scottish educational system and the continental tradition going back to rnedieval times. He points in particular to the compulsory teaching of philosophy through a method combining lectures with tutorial-style oral examinations as the major contribution to the eradication of class barriers within Scotland because of its capacity to neutralize inequalities of family background?

It may not matter that a subsequent study by Robert ~nderson~'has disputed many of Davie's conclusions. Anderson supports Davie's story of the general excellence of the primary rural school system, but provides persuasive evidence that higher Scottish education was not nearly as democratic as it was purported to be. At best, it rnay have provided a limited safety valve for ambitious working class boys to transcend class through education which, in Anderson's view, served to justify the suppression of social mobility for al1 those who could not make the grade and

- - -- 38 Campbell, op. cit. at 266.

39 D,C. Masters, "The Scottish Tradition in Higher Education" in Reid, op. cit., 248 at 267.

40 George Elder David, The Democratic Intellect: Scotiand and Her Universities in the Nineteenth Centuw (Edinburgh: Edinburgh University Press. 1961).

41 Robert Anderson, "In Search of the 'Lad of Parts': the Mythical History of Scottish Education" (1985) 19 History Workshop: A Journal of Socialist and Ferninist Historians 82 therefore did not merit it. Contemporary novels romanticized the privations suffered by the few lads granted scholarships for advanced study, who lived on sacks of oatrneal and herring from home in their cheap boarding houses, and sometimes died tubercular deaths shortly after their degrees were triumphantly granted42. Again,

however, for Our purposes what matters about these accounts is not whether Davie or

Anderson is right, but the compelling power of the Scottish myth of democratic access to higher education in so far as it affected the development of educational

institutions in early Canadian history."

The mythologizing of the characteristic Scottish personality, of Scottish law and

Scottish education were al1 well underway before the Act of Union, but historians of the Scottish Enlightenment consider that wounded national pride was a significant

source of pique which helped nurture a multipie and defiant assertion of ScotD'sh

national culture after 1707." In the eighteenth century, Edinburgh became known

42 Ibid., at 91. Anderson provides a (to me) particularly fascinating account of the role of the rural school inspecter in nineteenth century Scottish education whose own stahis, and that of the local teacher, depended in part on the number of scholarships awarded in his district, but Anderson also points out that the extraordinarily gifted [ad of parts granted enby to the university was always a lad; no matter how valued wornen as rnothers may have been within the home and in public life, working class girls did not have the same opportunities for higher education that boys did.

43See John G. Reid, "Beyond the Democratic Intellect: The Scottish Example and University Reform in Canada's Maritime Provinces, j870-1890" in Youth, Universitv and Canadian Society: Essays in the Social Histow of Hirrher Education eds. Paul Axelrod and John G. Reid (Montreal: Mcgill-Queen's University Press, 1989) in which Reid quotes both Davie and Anderson at length, prefemng Anderson's version but pointing also to the power of the myth taking on a life of its own. Reid considers in particular the relatively earfy development of specialization in Maritimes education which was not in the Scottish tradition-

44 See David Daiches, "The Scotüsh Enlightenrnent" in A Hotbed of Genius. The Scottish Enlightenment 1730-1790 eds. David Daiches, Peter Jones and Jean Jones (Edinburgh: Edinburgh University Press, 1986) at 2-5. In my account of Scottish Enlightenment cultural development in general and the development of its philosophies of common sense in particular in the following section of this study, I will draw heavily on this source and on Jane Rendall, The Onnins of The Scottish Enliqhtenment (London: MacMillan Press, 1978). 42 as the Athens of the North, asserting its superiority to the English not only in law but in many other areas of intellectual achievement through its unprecedented developments in history, sociology, science, literature and literary criticism as well as more pragrnatically through its development of progressive experiments in agricultural technology, manufacturing technology, finance and ewnomics.

What is particularly interesting is the way in which these more practical studies were often generated by the same Scottish scholars who produced extremely abstract and theoretical work. James Burnett, Lord Monboddo (1714-99) was a prominent figure of the Scottish Enlightenment and member of the Select Society, a gentlemen's club of academics, merchants and military men which met in Edinburgh; David Hume and the architect John Adam were also members. Burnett was called to the bar in

1737 after studies at Aberdeen, Edinburgh and Groningen and became a Lord of

Session in 1737, but wrote little in law, preferring instead to produce a six volume treatise on the relationship between linguistic development and the development of politicai science, and another six volume study relaüng human and animal behaviour which might be considered an early experiment in comparative sociology.

The scholarly pursuits of Henry Homes, Lord Kames (1696-1782) also illustrate the characteristically pragmatic eclecticism of Scottish Enlightenment scholars.

Kames, who was admitted as an advocate in 1723 and had become a Lord of the

Justiciary in 1763, published Essavs on several subiects in law in 1732, Historical

Law Tracts in 1758, Principles of Equitv in 1760 and three other books on law as well as studies in anthropology, the theory of language, the origins of poetry and useful 42 handbooks on flax-husbandry and farming in 1766 and 1767.

Kames was a patron of the young Adam Smith whom he met through the

Select Society, and also a patron of William Cullen (1710-go), a renowned doctor and

professor of the era who helped establish Edinburgh as the leading medical school in the country. In light of this pragrnatic tradition of higher learning, it is not surprising that Cullen was also noted for his practical studies in chemistry which contributed to the development of expertise in dyeing, an integral aspect of the burgeoning textiles trade in eighteenth century Scotland.

Many such examples could be cited which resulted in numerous improvinç

projects in Scottish rural and urban life, including other aspects of manufacturing, fisheries, banking services, town planning and the building of roads, bridges and canals. These latter aspects of Scottish enterprise are transplanted to Canada in the

building of the Rideau Canal which was largely undertaken by Scottish stone masons, or in the organization of Ontario towns such as Goderich which was designed in emulation of the neoclassical New Town of Edinburgh planned by Sir Gilbert Elliot, who believed that good architecture could contribute to prosperity as well as to civic

politeness and refinement?

Just as flax-husbandry might be the practical application of agricultural theory

45 See Mark Kingwell, "Politics and the Polite Society in the Scottish Enlightenment!' (1993) 19 Historical RefiectionsIRefiexions Historiques 3 364 at 375; Kingwell quotes from Elliot's 1752 pamphlet, "Proposals for carrying on certain Public Works in the City of Edinburgh", which makes this claim. Although the neoclassical architecture associated with the philosophy of moral sentiment in Scotland reflects the element of rational inference, in Canada (as we will see) these doctrines were repfaced with a comrnon sense philosophy which rapidly became associated with religious piety; it is not surprising that a ubiquitous NeoGothic architecture was more appropriate to this distinctively Canadian ideology and dominated nineteenth century towns. 43 or the cash credit system (invented by the Royal Bank of Scotland in 172746)the

practical application of economic theory, so too can law be viewed as the practical

application of sorne aspects of political and moral philosophy. At any rate, the

preeminent contribution of the Scottish Enlightenment undoubtedly was the development of a distinctive philosophy of moral sentiment, and particularly the role of emotion in moral thought. George Elder Davie places the teaching of philosophy at the heart of the Scottish educational system, and David Daiches dates the beginnings of the Scottish Enlightenment from the publication of Francis Hutcheson's lnquirv into the Oriainals of Our ldeas of Beautv and Virtue in 1724." At this point, we need to

make a further detour into the intricate footpaths of Scottish Enlightenment

p hilosophy.

48 Daiches, "The Scottish Enlightenment" op. cit., at 34,

47 Ibid., ai 1. PART II

Scottish Enlightenment Philosophies

1. Pluralisrn and Amateurisrn

My interest in the possible connections between Scottish Enlightenment philosophy and postmodem strategies was first sparked by a chapter in Joan Tronto's

1993 book, Moral ~oundaries', in which she debunks the feminist notion that an ethic of care is the sole domain of female thought or sensibiliv, instead tracing its origins back to the contextual morality of the Scottish Enlightenment. Tronto focuses on the philosophies of Francis Hutcheson. David Hume and Adam Smith as neo-

Aristotelian explorations of common sense and moral sentiment. She says nothing directly about feminism in relation to postmodernism or about postmodernism in relation to the Scottish Enlightenrnent; however, she does point out the foundations of

Foucault's concepts of power and control in the eighteenth century Scottish projects of improvemenP and Foucault, of course, is considered one of the great pioneers of

'~eeJoan C. Tronto, "Universalistic Morality and Moral Sentiments" in Moral Boundanes (New York and London: Routledge, 1993). 1 am heavily indebted to Tronto, as well as Daiches et ai. and Rendall, for the discussion of Scottish Enlightenment philosophy which t attempt below.

2See Carol Gilligan, In a Different Voice. Psvcholoaical Theow and Women's Development (Cambridge: Harvard University Press, 1982). widely interpreted by feminists as a manifesto proclaiming the superiority of women's ethic of care in contrast to men's ethic of justice, alttiough on close reading it is clearly not intended as such by its author.

3 Ibid., at 34 note 25, citing Foucault's Madness and CiviIization: The Birth of the Clinic; and Discipline and Punish. See also Michael lgnatieff, A Just Measure of Pain, The Penitentiarv in the Industrial Revolution 1750-1850 (New York: Columbia University Press, 1978) in which he anticipates Foucault's discussion of the origins of the penitentiary system, specifically linking this evolution (at page 76) to the Scottish Enlightenment belief adopted by the English parliarnentary refomers of the 1770s that govemment in al1 its aspects could become a science. The Canadian-bom Ignatieff, now living in London, also CO-editeda useful collection of essays on Scottish Enlightenrnent culture and thought: see Wealth and Virtue. The Shaping of Political Economv in the Scottish Enli~htenmenteds. lstvan Hont and Michael postmodernism.

It is Tronto's thesis, and I think an extrernely invaluable insight, that the

Scottish Enlightenrnent represented one emergence of a persistent but frequentiy subterranean tradition of moral thought in Western philosophy. We can think of this tradition in constant competition with the Platonic rnodel of pure rational agency which, in its Kantian forrn, has recently dominated modernist law. In Tronto's opinion

(and here 1 disagree with her) the Kantian modernist and scientific traditions of superrationality perrnanently displaced Hutcheson and Hume and Smith. I rely instead on Canadian philosopher Charles Taylor, who tells us that we are always in practice Aristotelian even when we are not acknowledging it because the foms of thought associated with moral sentiment are not eradicabie from the human personality by a rnere act of rational wil14. Taylor's insight is fully congruent with

John Ralston Saul's notion of the unconscious civilization, although rather more optimistically so.

Taylor also offers an extremely helpful explanation of the Aristotelian concept of phronesis. Phronesis is a qualiiy of hurnan cognition at the threshold between practical and philosophical wisdom which can never be codified as a set of simple laws but which helps us to decide what action is most achievably virtuous in an infinite variety of situations where we must choose among various partial and

lgnatieff (Cambridge: Cambridge University Press, 1983).

4~harfesTaylor, "Justice After Virtue". unpublished paper delivered at University of Toronto Law School Legal Theory Workshop (October 23, 1987) at 6 and following. Taylor comments in this paper on the serninal work by Alasdair Maclntyre, After Virtue, discussed infra. 46 incomplete goods5 It is the necessarily contextual contingency of phronesis which makes it impossible for anyone to be expert in ethics -in fact, phronesis renders any claim to such expertise itself ethically suspect - but Aristotle is by no means willing to let us off the hook: his ethics require us to try to achieve virtue in action even in the absence of those consoling certainties we associate with expertise.

Viewed in this light, we can begin to think of the contextual and moral muitiplicities of postmodernism, not as something foreign or new, but as a deeply familiar strand of our cultural heritage which is now resurfacing again. But in order to trace these concepts out of the Scottish Enlightenment into contemporary Canadian postrnodernist law, it will be necessary to look beyond the texts of Hutcheson, Hume and Smith examined by Tronto to consider the less skeptical branches of Scottish philosophy which Canadian histories of philosophy tell us were of particular interest in this country.

The Scottish universities where these philosophies of moral sentiment and common sense were first developed and taught in the eighteenth century were strongly influenced by the works of Aristotle and in particular, the Aristotelian tradition of empiricism. In England, this empiricism had been developed through the scientific studies of moral and political philosophy by Isaac Newton and John Locke and then reinterpreted and interfused with religious sensibility in the studies of Bishop

Berkeley. Al1 of these theories were widely discussed arnong the philosophers of early eighteenth-century Scotland. That is, to Newton's method of observation and

5 Ibid., at 8 47 experiment as the Scots applied it to moral philosophy was added Locke's interest in the "tabula rasa" of the mind building up sensations from experience through sense data of the extemal world; Berkeley's contribution was his insistence that this activity of the mind did not have a material or mechanistic locus but was self-evidently produced and sustained by the spirit of God in communication with the hurnan spirk6

It is in this context that we can begin to understand the tight interdisciplinary interrelationships arnong religion, philosophy, psychology, economics and political science which perrneated Scottish culture and Scottish legai tradition. That tradition was a natural law theory in which it was evident to cornrnon sense that law inevitably springs out of the moral sentiment integral to social interaction. The Scots, and the

Scots Canadians who were overwhelmingly influential in developing Canadian social institutions, believed that such social interaction is entirely natural to human beings because part of God-created human nature. Common sense, like Aristotelian phronesis itself, is another liminal concept simultaneously integral to the everyday experience of ordinary people which comprises the ephemeral "community rnind" and separate from it as a more-or-less technically developed tool of philosophical analysis arising out of Scottish Enlightenment thought. To understand its links to postmodernisrn, we need to consider both of these aspects.

But if it was necessary to hedge my survey of the history of Scottish immigration to Canada with various caveats derived from the theory of historiography and legal pluralism, such ternporizing is an even more essential prelirninary to any

"me concepts in this paragraph are derived from Jane Rendall. op. cit, at 38. 19. and 21-23. summarizing account of the complex philosophical ideas of the Scottish

Enlightenrnent. Partly to honour the tradition of the Scottish Enlightenment interdisciplinary scholars such as Lords Kames and Monboddo (who were amateurs in the best sense), partly in acknowledgement of the mythmaking inseparable from writing about any history, and pragmatically (because that is al1 that is available to hand without delving into archival research) I have relied on amateur historical accounts to sketch out Scottish contributions to Canadian cultural institutions.

Modernism, on the other hand, values almost exclusively the expertise which arises out of academic specialization; I am, inescapably, enough of a modernist to worry about the amateurishness inherent to pluralist approaches. However, there is no method other than an interdisciplinary method of attempting to evoke a

"community rnind", and there is at the same time no realistic possibility of attaining anything approaching expertise in each (or perhaps in any) of the academic disciplines which this project requires me to explore. And of these disciplines, philosophy, especially as it came to be understood after the mid-twentieth century when a modernist fixation on analytic tautologies began to dominate ail serious philosophical inquiry, is probably the most formidably resistant to amateur pluralism.

The publication of Alisdair Maclntyre's ARer Virtue in 1982 was an extrernely important event in the history of contemporary philosophy, because it helped redirect the attention of philosophy back to neoAristotelian notions of moral sentiment.

Maclntyre notes that within modernist culture it became self-evident that "academic philosophy is a highly rnarginalized and specialized activity", no longer either 49 accessible or meaningful to ordinary people; even the "college-educated", he says,

retain nothing beyond "vague cartoon-like mernories of Philosophy IOO".~ It is also

Maclntyre's view, however, that the fundarnental moral problems of everyday life and the fundamental problems of this highly academic and specialized field of modemist

philosophy are (even though we may not realize it) inseparable from each other, and that it is impossible to solve one without understanding at least the rudiments of the other. And this is a stance with which the Scottish Enlightenment philosophers of

moral sentiment and common sense (whorn Maclntyre writes about here and elsewhere at considerable length) would certainly have agreed.

Philosophy in eighteenth century Scotland was not a separate realm of acadernic expertise but consciously or unconsciously integrated into everyday life.

We will see that the various permutations of Scottish-derived philosophies of

nineteenth and eariy twentieth century Canada were similarly ubiquitous aspects of the community mind which I am attempting to evoke, disseminated through schools and universities and churches and through special church-amliated organizations set

up to help assimilate immigrant^.^ And we will look later more specifically at the

'~lasdairMaclntyre, After Virtue 2nd ed., (Notre Dame: University of Notre Dame Press, 1984), at 36.

8See, for example, Manana Valverde, The Aae of Linht, Soap and Water. Moral Reform in English Canada 1885-1925 (Toronto: McClelland & Stewart, 1991) at 120 and following, where Valverde draws on church archiva1 sources to describe the elaborate organization of the Presbyterian Home Mission Board in assirnilating Scottish immigrants and in ensun'ng that Scottish values were perpetuated; in 1913 alone, over 15,000 persons were handled. The preface to Valverde's unusual and fascinating book makes it clear that she herself intends to recreate the community mind which gave rise to the social purity movement through interdisciplinary methods integrating academic approaches derived ftom religion, sociology, history, feminism and the postrnodem analysis of discourse developed by Foucault; unfortunately, she does not consider the contributions made by academic or popular philosophy to the ethos of the era. 50 relationship between law and education in Canada; those Canadian lawyers and judges who were taught philosophy between 1850 and 1950, almost exclusively by imported Scottish professors of philosophy - either as a required course for their liberal arts university degrees before pursuing law, or as an element of their bar admissions preparations - were, after all, not intended to become experts in philosophy but rather to learn values which they could apply in the practice of law.

Canadian Nobel laureate John C. Polanyi has endorsed a definition of educaüon as the values which rernain "after you forget al1 you were taught":

mhe knowledge that we have, knowledge contingent on values, is all of a piece. Science, law, history, art, are subject to a uniQing principle. Ail depend upon our notions of what makes sense, of what is aesthetically pleasing, of what sort of a world it is that we inhabit. Happily for our relationships with one another, it is a world that lacks irresistible machinery of proof; a worid in which we seek the truth, occasionally approach it, but never reach it.'

Poianyi's version of the residuum of academic endeavour is a little less discouraging than Maclntyre's "vague, cartoon-like memories" because he assumes that we remember what rnatters, and that what rnatters is what coheres with our common sense experience of the world. Similarly, my highly selective survey of Scottish

Enlightenment philosophy is not meant to present philosophical argument (or "do philosophy") but rather to focus on what seems to have mattered -- although I cannot prove it - because it coheres with the postmodern world we are inhabiting now. And because this philosophy permeated Canadian culture for a hundred years or more -- roughly, between 1850 and 1950 -- this survey, despite its superficiality and my best

9John C. Polyani, "Judging the world we teachn, Toronto Star (April 6, 1998) at A14. efforts to prune it down, is still more lengthy than I would wish.

2. Philosophies of Moral Sentiment

(a) Francis Hutcheson: Benevolence and Social Distance

Francis Hutcheson was a professor of moral philosophy at the University of

Glasgow between 1723 and 1746 who has been credited with initiating the empiricist approach to moral philosophy characteristic of the Scottish Enlightenment.

Disciplined introspection and observation of our own mental states tells us the kind of beings that we are'' and Hutcheson's assessrnent is characteristically optimistic.

We are naturally good. He points to our own experience of an innate capacity for sympathy as the foundation for the moral virtue of benevolence. It is a matter of common sense that such benevolence is most apparent to us in the particular situations we experience as individuals and that it is transmitted because of parücular relationships which exist between individuals. Natural benevolence, then, depends upon fairly narrow "social distance"; in intimate relationships, we are immediately aware of what feelings are right because they give rise to right actions - that is, actions which will self-evidently result in either a particular good for another or a

10 Rendall, op. cit., at 23. Rendall cites at note 25 A Short Introduction to Moral Philosophy in three books, containinq the elements of ethicks and the law of nature, published in Latin by Hutcheson in 1747, which Hutcheson begins by telling us that "We must . . . search accurately into the constitution of our nature, to see what sort of creatures we are . . . " 52 general good for society as a whole.ll Right actions are related to human rights and are also determined contextually; a right to do something or to enjoy or possess something cannot exist independently of the circumstances in which it would be a wrong action to deprive another person of that liberty of action or posse~sion.'~

Furthermore, it is our experience of rights existing in relationship which makes us aware of individual equality. Hutcheson points in particular to the equality of men and wornen within families which is self-evident to anyone consulting his or her own experience:

the tender sentiments and affections which engage the parties into this relation of marriage, plainly declare it to be a state of equal partnership or friendship, and not such a one wherein the one party stipulates to himself a right of governing in al1 domestic affairs and the other promises subjection.13

The function of social institutions such as law and the political state is to educate citizens so that they will sustain the kind of personal benevolence which is innate to them across a variety of situations when social distance becornes much more

11Ibid. at 83, citing Book 1 at 252-3: From the constitution of our moral faculty aboveexplained, we have our notions of rights and wrong, as characters of affections and actions. The affections approved as right, are either universal goodwill and love of moral excellence, or such parücular kind affections as are consistent with these. The actions approved as right, are such as are wisely intended either for the general good, or such good of some particular society or individual as is consistent with it- This version is more nuanced and less utilitarian than Hutchinson could sometirnes be: see also Francis Hutchinson, lnauirv into the Oriqin of Our ldeas of Beautv and Virtue (Edinburgh, 1725), Treatise Il, "Conceming Moral Good and Eviln, S. 3 in which he wrote, "That action is best which procures the greatest good for the greatest numbers."

12 Ibid.

13 Ibid., Book II at 163. 53 attenuated14; in Hutcheson's view, then, these social institutions are a natural extension of the innate benevolence of al1 human beings.15

(b) David Hume: A Profoundly Moral Skepticism

It is impossible to sum up David Hume's contribution to the Scottish

Enlightenment or to Western philosophy more generally in a paragraph or two, and of course that is not my aim here, but what 1 do want to consider is the particular strain of epistemological skepticism with which he infused Hutcheson's doctrines of moral sentiment and cornmon sense empiricism. Hume was admitted to the University of

Edinburgh at the age of eleven where he began by studying law. Soon considerations of legal philosophy led him further afield into explorations of pure epistemology that were deeply threatening to the religious orthodoxy of his era. He was by al1 contemporary accounts a particularly genial and charming person, but he encountered a good deal of dificulty during his own lifetime as a result of this skepticism which was for him a matter of moral integrity.16 For example, he was

14 Joan Tronto, op cit at 39-43; Tronto cites passages from Francis Hutcheson, "Inquiry into the Original of Our ldeas of Beauty and Virtue" and Essays on Passions and Affections" in Collected Works of Francis Hutcheson (Hildesheim: George Olms Verlagsbuchhandlung, 1971) as well as from his Moral Philosophv.

15 Rendall, op cit., at 77, citing Moral Philoso~hy,fifth edition translated by Andrew Tooke (London, 1753) at p. 41.

16 Hume sustained this agnosücism right up to his deathbed. as was recorded in a contemporary account by his friend, Adam Smith, who wrote in a personal letter, "Poor David Hume is dying very fast, but with great cheerfulness and good humour and with more real resignation to the necessary course of things, than any whining Christian ever dies with pretended resignation to the wiIl of God". Cited in D. Raphael, "Adam Smith", from A Hotbed of Genius, op cit., at ï7. See also Michael lgnatieff, "Metaphysics and the Market: Hume and Boswelln in The Needs of Stran~ers(New York: Penguin, 1984) at 81 for a 54 unsuccessful in his attempts to be appointed to the Chair of Moral Philosophy at the

University of Edinburgh in 1744 because of lively opposition to his agnostic views.

However, patrons and fellow mernbers of the Select Society were later successful in

obtaining for him a variety of cornfortable positions. Hume worked for a time as a

tutor; accornpanied General St. Clair on a naval expedition which was meant to arrive

in Canada in 1746 but instead ended up in France (an event which contributed to his

general bernusement with bureaucratic befuddlements); was employed as Keeper of the Advocates Library in Edinburgh; and then, after publication of a six volume history

of England had won him suitable international prestige, obtained a nurnber of

diplomatic appointments in France, London and Edinburgh.

Hume's skepticism was the inescapable result of the very kind of

episternological inquiry that Hutcheson had initiated. Such an inquiry could not fail to

disclose to Hume's unwavering attention the natural limits of knowledge and in

particular the necessity that we tolerate, as cheerfully as we are able, our own

experience of contingencies and probabilities without the consolation of certainty".

For Hume, drawing on Aristotle and Cicero and the new English empiricists but also

interpreting their ideas with typical Scottish pragmatisrn, probability was (probably)

sufficient to get things done in any event, without requiring absolute proof; but for his

particularly thoughtful and moving account of Hume's philosophical death. Barbara Wermstein Smith, op cit, at 55-57, has discussed the heroic dimension in Hume's phenomenology, relating it to concepts of contingency in postrnodem ethics and pointing out Hume's recognition thaï the impossibiIity of achieving any certainty about significance need not result in a collapse into nihiiism or despair.

17 1 rely here on Tronto and Rendall, op. cit., and also on Peter Jones, "David Humewin A Hotbed of Genius, op cit, at 41 and following. critics, it was damning evidence of abandonment of Christian principle.

Hume's Treatise of Human Nature, first published in 1739 to very little response, is particularly famous for his analysis of causation, best summarized in the

Abstract which he published anonymously a year later as a kind of marketing pamphlet in order to attract more attention to his labours. It is in the Abstract that

Hume provides his analogy of the billiard ball striking another ball to illustrate that al1 of our understanding of causal relations depends upon inference and our own expectation (based on prior experience) that every event has a cause. But Hume demonstrates that repeated experience of the sequential proximity of two events does not demonstrate necessary causation. It was a short leap for his critics to point out that Hume's argument denied the necessary existence of any First Cause. He had clearly set aside the Berkeleyian framework of religious faith within which Hutcheson continued to work and which made Hutcheson so appealing to the Moderates within the church hierarchy; although Hume believed that "reason is, and ought only to be, the slave of the passion^"'^, he nevertheless considered faith to entai1 the complete abandonment of the human capacity to think and reason.lg

The pleasure of thinking for Hume was not destroyed by his recognition of its sharp limitations even in the areas where presumably we have most expertise, the inquiry into Our own mental states. Hume acknowledged that diligent introspection about the causes for Our actions (for which legally we must accept responsibility) still

18 David Daiches, "The Scottish Enlightenmentmin Hotbed of Genius, op. cit, at 17.

10 Peter Jones, op. cit at 56. 56 leaves us often unaware of the cause of the mental happenings which fom in tum the motives of those actions. The problem is not just that acquiring knowledge and perceiving and ihinking is distorted by the very process of studying and the very choice of study topic20 - an idea with which Stanley Fish would agree. Hume also faced squarely his awareness that the individual doing the thinking is also transfoned and changed both by the process of thinking and by the experience about which he is thinking, so that human beings diHer "not only from each other but also from themselves in different times"? His phenomenological concept of the self acknowledges that there is no subject which can be fixed as an unchanging entity separable from the events which constitute it, and this is the very dissolution of the legal subject for which the postmodernists have been condemned.

Hume agreed generally with Hutcheson's optirnistic assessrnent of the human capacity for sympathy and benevolence, going so far as to Say that "absolute. unprovoked malice has never perhaps place in any human breast"". The moral sense is as natural for Hume as for Hutcheson, but sympathetic action requires in addition whatever rational reflection and moral inference we are able to sustain.

However, because of the phenomenological limitations on our ability to know what is right in any fixed and permanent way, the natural virtue of moral sentiment modified by rational inference must also be structured through the artificial, social virtue of

20 Jones, op. cit. at 50

21 Hume, Treatise, cited by Tronto, op. cit, at 44, f.n. 56.

22 Daiches, "The Scottish Enlightenment", op. cit, at 17, citing Hume's Enquiry Conceminci the Principles of Morôls published in 1751. 57 justice in order to achieve consistency in moral behaviour wlhin a civilized society beyond our intimate relati~nships.~~And as the social distance between citizens increases, it becomes increasingly important that moral inference be encoded in law and political institutions" as a kind of aggregation of comrnon sense viewpoints.

Probabilities indicate this is the best justice we are pragmatically likely to achieve;

Hume's insight is fully congruent with Aristotle's empirical understanding that the origins of justice must anse out of the opinion of ordinary people derived from their everyday introspection, and Aristotle's warning that it is as undesirable to aim for too pure an ideal of justice as it is to rest content with palpable ir~justice.~~

Adam Smith, the third great figure among the Scottish Enlightenment philosophers, is by far better known for The Wealth of Nations, first published in

1776, than for his Theorv of Moral Sentiments which had corne out seventeen years earlier, but as John Ralston Saul has pointed out, the moral philosophy is absolutely

24 Rendall, op. cit., at 117, citing Hume on the origin of justice in Treatise: in the original frame of Our mind, Our strongest attention is confined to ourselves; Our next is extended to our relations and acquaintance; and 'tis only the weakest which reaches to strangers and indifferent persons. . . The remedy, then. is not derived from nature, but from artifice; or more properly speaking, nature provides a remedy in the judgment and understanding, for what is irregular and commodious in the affections.

25 Aristotie, Tehtranslated with an introduction by David Ross, revised by J.L. Ackrill and J-O. Urmson (Oxford and New York: Oxford University Press, 1980) V 5. 58 central to the economic the~ry.~~Smith had been a student of Hutcheson at

Glasgow University between 1737 and 1740 and he was very much in agreement

with Hutcheson's theories of moral sentiment based on self-knowledge and human

interrelationships; like Hutcheon, Smith was also careful to keep his philosophy within

the confines of the Christian orthodoxy of his place and time.

Smith may have learned propriety from the reprimand he received at Balliol for

reading Hume's Treatise of Human Nature; his copy was confiscated, and Smith

chose to leave Oxford early rather than subrnit to further cen~orship~~but it is clear that he was able to handle this youthful indiscretion so as not to damage his

reputation or impede his career. He went on to teach, first law students at University

of Edinburgh and later philosophy students at University of Glasgow, occupying the

Chair of Logic and then the Chair of Moral Philosophy between 1751 and 1764 which

he said was the happiest and most honourable period of his life.

A Hutchesonian optirnisin about the human capacity for benevolence is cleariy

apparent in the opening words of Smith's Theorv of Moral Sentiments:

How selfish soever man may be supposed, there are evidently soma principles in his nature, which interest him in the fortune of others, and render their happiness necessary to him though he derives nothing from it except the pleasure of seeing it.28

Even here the aiert reader notices a certain element of Hume in Smith's skepticism

28 Op. cit., at 155 and following. 1 draw on John Ralston Saul as well as Tronto, Rendall and Daiches in the discussion which follows. n See D, Raphael, "Adam Smithn in A Hotbed of Genius, op. cit, at 69.

28 Cited in David Daiches, op. cit., at 17. about the possibility of pure altruism in human relationships. It is clear to him that some, at least, suppose people to be selfish and Smith does not commit himself on that issue in the moral philosophy.

However, it is for the pnnciple of self-interest as a public good which Smith set out in The Wealth of Nations that the law and economics school most often cites him in justification of unbridled capitalist free enterprise:

It is not from the benevolence of the butcher, the brewer or the baker that we expect Our dinner, but from their regard to their own interest. We address ourselves, not to their humanity, but to their self-love; and never talk to thern of their own necessities, but of their advantages. . . Every individual is continually exerting himself to find out the rnost advantageous employment for whatever capital he can command. It is his own advantage, indeed, and not that of the society, which he has in view. But the study of his own advantage, naturally, or rather necessarily, leads him to prefer that employment which is most advantageous to society. He is in this . . . led by an invisible hand to promote an end which was not part of his intention. Nor it is always the worse for society that it was not part of it. By pursuing his own interest, he frequently promotes that of society more effectually than when he really intends to promote it.29

"Nor is it always the worse for society", Smith writes carefully. He is telling us only that there are circumstances in which the rnost efficient resource allocation, economic growth and distribution of income within a society may result when the pursuit of private interest coincides with the public interest; he is not cornmithg himself that such a fusion always results. For Smith, maximizing wealth was a good thing in so far as it increased human dignity and liberty, but not as an end in itself. He is, as

29 Michael Trebilcock, The Limits of Freedom of Contract (Cambridge: Harvard University Press, 1993) at 241 usefully collates the three most famous passages from The Wealth of Nations (1 937) at 14, 421, 423. 60 John Ralston Saul says, in profound disagreement with the market economists and neo-conservatives who quote hirn so selective~y?~

Indeed, as Jerry Evensky has pointed out, Adam Smith substantially rewrote both the Wealth of Nations and his Theow of Moral Sentiments in the 1770s after he had left Glasgow for London and had seen the effects of unbridled self-interest on the part of merchants pressuring the government to pursue a costly war with the colonies in order to secure markets for their manufactured g~ods.~'Wiih the development of international capitalism far beyond the small-city industrialized setting of midcentury Glasgow in which the "invisible hand" theory had first evolved, social distance had become too attenuated for moral sympathy alone to be a reliable source of benevolence. If Hume saw the individual changing in response to experience, for

Smith all of society changed in response to collective experience, and law of necessity had to change to accommodate social change. If Hume was interested in the interrelationship between cause and effect, Smith was vividly aware of the rolling evolution of the law, with law sometimes the cause of social change but just as often changing in response to changes in social consensus.

Smith believed that benevolence alone was only one element of human virtue; his empiricism led him to note the coexistence of benevolence with prudence and

- 30 Ibid., at 155.

31Jerry Evensky, "Setting the Scene: Adam Smith's Moral Philosophy" in Adam Smith and the Philosophy of Law and Economics, supra note 6 generally and at 7. Evensky provides a through outline of Smith's moral philosophy, quoting extensively from his Theow of Moral Sentiments, the Lectures on Juris~rudenceand The Wealth of Nations. See also lstvan Hont and Michael Ignatieff, "Needs and Justice in the 'Wealth of Nations'", in Wealth and Virtue, op. cit, at 9, in which they stress Smith's recognition of the power of commercial society to create an insatiable desire for materialist goods. 61 propriety in the lives of those we consider functionally good - good in action.

Prudent persons will modiw their own self interest out of propriety, the desire to be

perceived by others to be decent and to avoid blame. This trilogy of human

motivators rnay not constitute altruisrn in any absolute sense, but it suffkes in

practice to produce a civil society under circumstances of constrained social distance when agents anticipate that their actions will be scrutinized by those they affect-

We can see the connection between the public scnitiny which creates propriety

and Smith's concept of the private conscience as impartial spectator, judging the

actions of the self, as an adaptation of Hume's notion of the phenomenological composition of the self. Smith's notion is sornewhat less multiple and less

evanescent, which makes it seem to be less terrifyingly contingent, but it is equally

changeable. For the individual the impartial spectator functions like a mirror, allowing

each of us to imagine how others might judge the propriety of our actions and to

make prudent adjustments in our behaviour according to this imagined critique.32

But in turn, the critiques of these individual impartial spectators contribute in the

aggregate to changes in social consensus and changes in social institutions. There

is an Aristotelian sense of our common humanity derived from the imaginative

community of others observing. acting on and judging us as we in turn engage in

continual observation, acting on and judging of them. Tolerance and compassion

evolve out of Our awareness of the interchangeability of roles, moral agent in this

instance, recipient of moral agency in another instance and moral adjudicator in the

Y See George Elder Davie, "The Mirror Theory: Hume and Smith Against Derridan at 135 in Scottish Enliqhtenment and other essavs, op. cit, at 135. 62 ne*, shifting continuously from situation to situation so that any tendency either to harshness or to laxness will be rnitigated.

The collective sense of what proper behaviour should be is then encoded as law by the state. However, the best laws should interfere with natural liberty as little as possible because law can only approximate the situation-contingent flexibility that innate propriety and self-adjusting prudence will produce more reliably. Smith tells us that we judge an action right when we identify with the moral actor and feel sympathy with what we infer the motivation of the action was; on the other hand. we judge an action meritorious when we identify with the recipient of the moral action and believe that we would feel grateful and benefited to be treated ~irnilarly.~~

These distinctions correspond to the Aristotelian distinction between corrective justice and distributive justice? corrective justice restores an equilibrium between the parties which was lost as a result of a voluntary or involuntary action, whereas distributive justice does not require that each individual be treated identically, but rather that each receive a share proportionate to his deserts. For Aristotle, both corrective and distributive justice are partial justices only, just instantiations of practical wisdom which must be subsurned within his overarching concept of complete justice as equity. Complete justice requires the additionai contribution of philosophic wisdom, through which we try to keep in mind the end of human

33 D. Raphael, op. cit.

34An'stotie, op. cit., Book V 63 existence? But justice exists in action only and cannot rest in philosophic wisdom.

The proper choice of actions requires a sifting and sorting and balancing of the possibilities through phronesis, that power of human cognition integrating practical and philosophical wisdom contextually in response to the particular situation which requires us to respond with judgment.

lt is the potential for distribution of unequal outcornes in recognition of empirical variation in desert which leaves room for self-interest as motivator for right behaviour. but (as Taylor has pointed ouP6) only in conjunction with a concept of forma1 corrective equality sustaining right behaviour as a transcendent good within a given society. That is what gets left out in the law and economics account of Adam

Smith, who agreed with Aristotle that only the integration of ethics and economics, of corrective and distributive justice. can create a just society conducive to human happiness and satisfaction.

Hutcheson's moral benevolence and his reciprocity of rights inhering in right actions; Hume's empirical skepticisrn, his phenomenological construction of the self and his profoundly moral toleration of the contingencies of causation; Smith's integration of economics with ethics and his dynamic interrelationship between social institution and social consensus: al1 of these ideas are fundamental to the Scottish

Enlightenment tradition of moral sentiment and reemerge in our enlightened postmodernism.

35 Ibid., Book VI.

36Charles Taylor, op. cit, at 22-25 3. Philosophies of Comrnon Sense

There is little question that Francis Hutcheson, David Hume and Adam Smith are the three towering figures of the Scottish Enlightenment whose neo-Aristotelian ideas contributed most both to the strengthening of the semi-submerged tradition of moral sentiment in Western philosophy and to the development of a distinctive society in eighteenth-century Scotland. We know that there was very substantial

Scottish immigration to Canada after the conquest and for the next hundred years; we have sorne prelirninary evidence, which will be expanded below, of the disproportionate influence of these Scottish immigrants in shaping every aspect of

Canadian social institutions during that crucial century. But there is not much evidence these farmers and fur traders devoted much time to speculating about

Hurnean causality.

On the contrary, of course, an appreciation of Hume's concept of causality warns us not to look for any direct and certain linkage between Scottish

Enlightenment philosophy and Canadian law; here, too, we will have to be content with probabilities estimated pragmatically in light of the facts. One inescapably negative fact contributing to the absence of direct citation of Scottish law is the reality that politically, Canada was the colony of England, not of Scotland. We will consider the evidence that, ai least before the late nineteenth century, there was some legal pluralisrn both in Lower Canada. where the French civil code is the clearest legal antecedent, and in Upper Canada, where American law was sometimes invoked. Nevertheless, by the turn of the century it had been established that Canadian law was English law.

But the absence of any direct citation of Scottish law is itself congruent with those stated doctrines of mainstrearn Scottish Enlightenrnent political philosophy which were avowedly antithetical to the imposition of state law in pluralist situations.

For exarnple, in writing about the relationship between a mother country and its colony, Francis Hutcheson said:

There is something so unnatural in supposing a large society, sufficient for al1 the good purposes of an independent political union, rernaining subject to the direction and government of a distant body of men who know not suficiently the circumstances and exigencies of this society; or in supposing this society obliged to be governed solely for the benefit of a distance [sic] country; that it is not easy to imagine there can be any foundation for it in justice or equity. The insisting on old claims and tacit conventions, to extend civil power over diHferent nations, and form grand unwieldy empires, without regard to the obvious maxims of humanity, has been one great source of human misery."

Historically, no one could be more aware of this misery than the Scots who after 1707 had suffered the crude precedents of English common law imposed on appeal to the

House of Lords as an overlay on the learned cosmopolitanisrn of the Scottish civil tradition.

It is interesting to compare the impact of Scottish culture in emerging Canada with the mood to the south of us. Archie Turnbull, in describing the relationship which evolved in the eighteenth century between Scotland and Arnerica, has pointed out that although "it would be wrong to infer that a11 the Scots immigrants to the

37Francis Hutcheson, Svstem of Moral Philoso~hy,Book II at 308-9,cited in Rendall, op. cit, at 95. American colonies dunng the post-Union decades were apostles of the

Enlightenrnent", there nevertheless was an educated elite among the Scots immigrants who were thoroughly familiar with these doctrines.38 In Canada, William

Lyon Mackenzie was sufficiently confident of the familiarity of his readers with

Scottish Enlightenrnent philosophy to quote Hume and Reid and others in his new~papers.~~

Certainly, both Hume and Smith were openly partisan with the colonists' cause and they did seem to enjoy a degree of political influence and connection which is not generally accorded philosophers today. Smith had a warm frkndship with Benjamin

Franklin, who visited with him in Glasgow. When consulted by the Pitt administration,

Smith advocated providing colonial representation at Westminster as a first step towards an imperial union which could avoid separation and end the war with the

American colonies.40 Hume, long employed in diplomatic circles in Europe, London and Scotland, made it clear that he considered the Arnerican revolution inevitabje because he agreed with Hutcheson that it was impossible for a srnall country to control a distant one which was so much larger. In a 1775 letter, he wrote with characteristic good humour, "1 am an American in rny principles and wish we would let them alone to govern or misgovern themselves as they think prope~.~'

38Archie Tumbull, "Scotiand and Amerka, 1730-90"in Hotbed of Genius, op. cit., at 137.

3g~eeLeslie Amour and Elizabeth Trott, The Faces of Reason (Waterloo: Wilfrid Laurier University Press, 1981) at 39.

40 Raphael, op. cit.

41TumbuIl, op. cit at 146. 67 It is George Davie's view that, after a brief Golden Age. Scotland's political union with England ultimately resulted in its economic and cultural colonization; the

Scottish Enlightenrnent "went out not with a whimper but wRh a bang and was by a sort of cornmon consent almost instantly forgotten"? Peter Jones has argued" that the moderation characteristic of the Scottish Enlightenrnent could not survive in the late eighteenth century, an era of violent political change which brought about not only by the American War of Independence but also the French Revolution. Societies in a state of upheaval dernand rigid and formalist approaches to government and law, strongly constrained by reason.

If so, it is no wonder that Paul Rogers was disappointed in his search through early American case law for references to the Scottish cases and Scottish codes that he knew to have been available in the libraries of the early American jurists and legislators. As we have seen, postmodernism first emerged in architecture. If we consider architecture as both signifier of community ethos and useful harbinger of ethos-shift, then the Neoclassical temples of postrevolutionary France and the

Federalist style characteristic of the early United States clearly serve to illustrate

Jones's theory, in rnuch the same way that modernist commercial towers can be seen as a syrnbol of the longing for pure scientific rationality after the ernotive chaos of the post-World War It era.

In the same paper. Jones also postulates that the increasing specialization of

42George Davie, The Scottish Enlicihtenrnent and Other Essavs (Edinburgh, 1991) at 4.

43 Peter Jones, "Conclusion" in A Hotbed of Genius, op cit, at 154. 68 knowledge resulting from the division of labour required by rapid industrialization was antithetical to the eclectic approach which we have seen is so characteristic of

Scottish Enlightenment scholarship, making the melding of the practical and the academic across many disciplines no longer possible. Adam Smith, significantly. was very interested in these issues but at the same time deeply ambivalent about them.

The whole first chapter of The Wealth of Nations was devoted to the issue of the division of labour to increase productivity, but Smith worried about the very real potential for the individual labourer to lose control of his own productive process.

Only if the labourer exercised a prudent parsimony in conserving the surplus of his labour, exchanging just that portion of his surplus necessary for acquiring goods and services produced by other specialized labourers and accumulating as much capital as possible to improve hirnself could such specialization be justified because it would make possible the transition from employee to employer. And only free access to education could make the worker both content with the monotony of his specialized labour in the short run and aware of the potential of self-restraint to increase his liberty in the long run."

But in Canada, there was no sharp political dislocation and there was no rapid industrialization. Our nation-state evolved slowly and through negotiation. Our simple natural-resource based industries sustained us in Our collective role as hewers of wood and drawers of water from the late eighteenth century through the nineteenth and even well into the twentieth century. Keeping in mind always Hume's caution

44 See Robin Paul Malloy, "Adam Smith and the Modem Discourse of Law and Economics" in Adam Smith and the Philoso~hyof Law and Economics, op. cit. at 113. 69 that the process of thinking about a topic changes both the topic and the individual doing the thinking, if Jones is right then Canada ought to have been an ideal sanctuary to sustain the moderation and the pragmatic interdisciplinary eclecticism of eighteenth-century Scottish Enlightenment ideals. And of course I am positing that these ideals were sustained here, forming our social institutions and being transformed through subsequent changes in Our society to produce a distinctively

Canadian and enlightened postmodernism -- a very large claim which 1 seek to support in subsequent sections of this paper (at least provisionally) by drawing on specific evidence provided by legal historians such as Richard Risk and Blaine Baker and Rosernary Coombe who have detailed some of the intellectual and political Iife of the era.

It is true, however, that the episternological, rnetaphysical, economic, political and moral concepts interwoven in the Scottish Enlightenment philosophers we have already attempted to sketch out are intellectually tough. In part this is so because, without subrnitting to the easy consolations of false systematization, Hutcheson,

Hume and Smith did aim for interna1 consistencies among their versions of these concepts. Hume's epistemology and the skepticism which it necessarily produced was particularly feared for its potential to be dangerously subversive of religion and social stability. One would predict that a somewhat less rigorous version of these ideas which was less internally coherent but more amenable to the stabilizing influence of church doctrines would have had a greater probability of surviving in early Scottish Canada, and this is exactly what happened. (a) Thomas Reid: Common Sense as Defence to Skepticisrn

When philosophy professor F. Tracy wrote a paper on "The Scottish

Philosophy" for the University of Toronto Quarterly in November, 1895, he made no mention whatsoever of either Hutcheson or Smith. Tracy refers to Hume only to denounce his skepticisrn and instead lauds Thomas Reid. Dugald Stewart, Thomas

Brown and Sir William Harni~ton~~as leading representatives of the Enlightenment.

And al1 of this was undoubtedly true from a Canadian perspective at his time.

Haif a century later, when Professor John A. Irving described "The

Development of Philosophy in Central Canada from 1850 to 190OW, he asserted that

"philosophically, Central Canada was a colony of Scotland". Canada was not. however, a philosophical colony of Hutcheson and Hume and Smith, the three moral sentiment philosophers who had so explicitly rejected colonization whether philosophical or political. Instead, Canada developed as a colony of the closely associated but sornewhat less rigorous Scottish Enlightenment school, the common sense rnovement. Irving's account demonstrates that the majority of the earliest

Canadian philosophers had been schooled in common sense in Glasgow or

Edinburgh, and Irving considered it still to be the dominant influence in Canadian philosophy up to the mid-twentieth cent~ry.~~A. B. McKillop says that this version

45 F. Tracy, 'The Scottish Philosophy" (1895) Il University of Toronto Quarteriy 1 at 1. 1 will refer to Professor Tracy's paper in the ensuing discussion of the Common Sense Schooi.

46 John A. Irving, "The Development of Philosophy in Central Canada from 1850 to 1900" (1950) XXXl Canadian Histoncal Review 3 252 at 285. 1 will araw also on John A. Iwing, "One Hundred Years of Canadian Philosophy" in Philosophy in Canada, A Symposium (University of Toronto Press, 1952) in my 71 of Enlightenment thought was further "adapted for use in Canadan by Canadian theologian-philosophers. It was useful in underscoring arguments for Christian orthodoxy, promoting religious piety as a stabilizing force in society and demonstrating a natural connection between God and mind to counter materialism and Darwinian evolution."

We have already seen that, in the Aristotelian tradition, Hutcheson, Hume and

Smith al1 placed considerable emphasis in their epistemologies on introspective empiricism and in their moral philosophies on the collective opinions of ordinary people. This sounds like what we customariiy mean by common sense: people with good common sense pay attention to their own sense of a situation and check with others. But Thomas Reid (1710-1796) who succeeded Adam Smith to the Chair of

Moral Philosophy at the University of Glasgow, built on Hutcheson's empiricism to evolve a more technical although still rather imprecise concept of common sense.

As Tracy noted, Reid was "shocked by the moral anarchy to which [Hume's] skepticism was likely to lead"." He specifically intended to challenge that

çkepticism as set out in the 1739 edition of Hume's Treatise of Human Nature which he read soon after publication. Reid began to draft his defences almost immediately, even submitting large sections of his work to Hume who commented genially without

discussion of the Common Sense School and the development of Canadian philosophy which follows.

47A. B. McKillop, A Disciplined Intelligence, Critical Inquiw and Canadian Thounht in the Victorian Era (Montreal: McGill-Queen's University Press, 1979) at 24 and following. I will also draw on McKillop's Contours of Canadian Thounht (Toronto: University of Toronto Press, 1987) and on Leslie Amour, ldea of Canada and the Cn'sis of CommuniW (Ottawa: Steel Rail Publishing, 1981).

'Yracy, op. cit., at 2. drawing attention to the inconsistencies in Reid's application of his ideas. Al1 of

Reid's responses were finally collated and published as the lnquirv into the Hurnan

Mind on the Principles of Common Sense in Edinburgh in 1764.

In a rnanner comparable to Hutcheson's elision of right actions with human rights, Reid seems to have thought of common sense both as a mental ability and as a kind of knowledge or set of beliefs generally held by persons in the aggregate."

In particular, Reid drew on sense perception to argue that it was intuitively self evident to everyone that the external world exists as a material phenornenon. The alternative is to believe that nothing is perceived except what is fleetingly present in the mind. But that would mean external objects lose their existence as soon as one ceases to be conscious of them. To accept that hypothesis would be, in Reid's opinion, to overturn all comrnon sense and al1 of science, philosophy, religious faith

and even the possibility of certainty about virtue. This was a result which Hume

couid contemplate cheerfully but Reid was unwilling to entertain. Reid's common

sense is as optimistic as Hutcheson's belief in natural benevolence, but much more

highly idealized than Hume or Smith who recognized the role of reason in sustaining

benevolence throug h rational reflection.

Smelling a rose, for exarnple, offers us irrefutable evidence that the rose exists

49 In setting out a skeleton of Reid's theories and the theories of the other Scotb'sh philosophers specifically associated with the common sense school, 1 am relying on Rendall, op. cit who unfortunately deals with these issues only briefly. 1 look also to writings by Tracy, op. cit., and to other early Canadian philosophers mentioned below who were influenced by these philosophers. I have made reference to an American source, Daniel Sommer Robinson, The Storv of Scottish Philosophy (New York: Exposition Press, 1961) and also to a contrasting contemporary account by Australian Henry Laurie, Scottish Philosophv in its National Development (Glasgow: James Maclehose, 1902). 1 rely also on excerpts fiom original documents found within these sources. 73 because we recognize introspectively through our experiences of rnernory and of imagination how a sensation of scent is separable from the object of that sensation itself. Sensation is different from perception, because sensation involves only feeling but perception entails knowledge based in the first instance on innate human capacity and in the second on acquired and comparative experience, Reid argues. Reid did not deny that on occasion a particular perception of an object might be mistaken, but he insisted that the intuitive belief in the existence of the object is innate within the human constitution, what we might today cal1 "hardwired". That is what everyone believes to be true, the consequences of not believing it to be true are too horriwing to be borne, and so it must be true, concluded Reid. There is a kind of casuistry in

Reid which the much-maligned Hume would have found anathema to his own tougher integrity, an integrity that required acknowledgement and toleration of contingency.

A significant part of that innate human capacity, for Reid God-given and therefore fully congruent with principles of natural theology, was a power to judge and to make moral distinctions in matters large and small. Most of the tirne, natural intuition permits us to decide without much difficulty what is right and what is wrong,

Reid thought; in circumstances in which judgment dernands action, reason permits us freely to decide upon an appropriate end or goal and an appropriate course of action to achieve that end. The right goal is happiness defined as self-approbation which we achieve only in doing our duty in accordance with the dictates of Our innate moral faculty or conscience; remorse results when we pursue power or esteem of others or even knowledge as ends in thernselves rather than as means to achieving 74 duty. And how do we know that we have this capacity for moral intuition? We know it because everyone agrees it is so and because we share with other people the experience of cultivating our moral capacity to maturity through deliberate exercises in self-improvement, drawing in particular on the instruction and the example of Our betters. There is clearly a relationship between Smith's prudent propriety and Reid's self-ap probation, which also owes something to Calvinistic duty and doctnbes of the elect. However, Reid's version is far more cornplacent and conservative than

Smith's. Reid also offers less potential for a responsive and flexible evolution of social institutions than is created by Smith's aggregation of impartial spectators whose compassion is rooted in their awareness that judges are also acted upon and judged in turn.

But it is important to stress that Reid was not simple-minded, even though rny superficial summary of his philosophy may make him appear to be so. And it is interesting to speculate how much of Reid's apparent evasion of tough episternological questions actually results from deliberate selection of style in accordance with his Aristotelian conviction that the appropriate choice of rhetorical instrument is constitutive of the ends it seeks to achieve. Reid had a duty to his students and to the public at large, grounded in his own Calvinist beliefs, to combat

Humean skepticism; he wanted to make his philosophy readable and comprehensible to achieve this purpose. At any rate, we know that he had published a study of

Aristotle's ~hetoric"and was deeply familiar with Aristotle's theory that the choice

%ornas Reid, Anal~sisof Aristotle's Rhetoric With Rernarks (Edinburgh. William Creech, n.d.) 75 of the right rhetorical instrument is another aspect of phronesis, that integration of philosophical and practical wisdom which is the hallrnark of a truly virtuous person in action5'.

(b) Dugald Stewart: Revealed Psychology

Dugald Stewart (1753-1828) was the son of a professor of mathematics at the

University of Edinburgh who began his own university studies in mathematics and philosophy at the age of twelve. He was only nineteen when he replaced his father in the Chair of Mathematics, a position he held for thirteen years before succeeding to the Chair of Moral Philosophy for twenty-five years, attracting students from throughout Scotland and from Europe and Arnerica because of his reputation for excellence as a lecturer and his wide breadth of interdisciplinary knowledge. Tracy considered that Stewart contributed relatively little that was new to Reid's metaphysical doctrines, but rather accepted thern uncritically in his Elements of

Philosophv of the Human Mind, published in several volumes between 1792 and

1827, and his Outlines of Moral Philoso~hvpublished in 1793. More significant than

Tracy realized at the time were Stewart's contributions to the developing field of psychology, which he based on Hume's empirical exploration of consciousness but

51 Ronald Beiner, in Political Judament (Chicago: The University of Chicago Press) at 85 and following provides a very helpful discussion of Aristotelian rhetoric, citing Aristotle's Rhetonc, trans. W. R. Roberts, in The Works of Aristotle, ed. W. D. Ross, vol. Il (Oxford: Clarendon Press, 1924). Kant distrusted rhetoric as emotional distortion of tmth; for Aristotle, rhetoric was not a superficial flourish imposed upon the content of a speech but a necessary counterbalance to merely objective and factual information which provided the emotional context appropriate for full understanding of those facts. 76

redeemed from skepticism through an analysis of association in the tradition of

Locke. Here Stewart found introspective evidence of underlying primary tniths or

ultimate beliefs which he believed to be fully compatible with religious faith; these

ideas were developed through Stewart's multivolume Elements of the Human Mind,

published between 1792 and 1827. And because Stewart seeks to demonstrate the discovery of ultimate beliefs through ernpirical methods rather than through

revelation, his reliance on their existence is traceable back to the natural justice theories of the moral sentiment philosophers. However, Stewart's laws of hurnan

belief are also sirnilar to Reid's principles of common sense and connect Stewart's

psychology with Reid's moral philosophy.

Thomas Brown (1778-1820)'~ was in turn the pupil and successor of Stewart at Edinburgh. He became a medical doctor, wrote poetry, and was particularly

interested in Humean concepts of causation, first publishing An ln~uirvinto the

Relation of Cause and Effect in 1816 which was revised and reissued in several subsequent editions. Because of his medical training, Brown was much more

interested in experimental psychology than Hume had been and in particular he

studied the physical phenornena connected with sense perception. For Brown, the

52 I rely here on Tracy, Robinson and Laurie, op cit. for in ttiis brief account of Brown's philosophy, including extracts from Brown's writings cited in these works. 77 experience of sense perception need not be simply a matter of customary association which might be random and contingent according to Humean concepts of causation;

Brown sustained Reid's doctrine of intuition in matters of common sense and he considered that belief in cause and effect was one of those intuitions which is so irresistible that we al1 share it.

This is a doctrine of causation which is entirely compatible with belief in God and also compatible with a moral philosophy which begins with an innate sense of right and wrong. Brown's Lectures on the Philoso~hvof the Mind, published in four volumes in 1820, atternpts an explanation of mental phenomena based on his understanding of physiological states. He considers first our experience of pure sensation, such as smell and vision and touch; next, the interna1 intellectual states of the mind generated by suggestion (or association) and by relative suggestion (or cornparison); and finally. the emotions which are most vividly apparent to our consciousness and which can be experienced immediately, retrospectively and prospectively.

lt is this iast category of mental phenomena in which our innate moral sense originates. Brown sets out an elaborate schema of categories for all our emotional states in relation to these moral "affections" in a manner comparable to Humean rational refiection as a mode of sustaining natural benevolence. For example, we approve the immediate emotional experience of cheerfulness but condemn ourselves or others for unjustified melancholy; we admire retrospective humility, but criticize pride; we applaud prospective ambition, but shrink frorn any manifestation of the 78 desire to do evil to others. However, Brown's impartial spectator seems to be always in a superior and judgmental position, much more conservative and cornplacent than

Smith's judging spectator who knows he will be acted upon and judged in turn. There is also little in Brown of the Humean humility which arises from Hume's awareness that both the topic of moral contemplation and the self doing the contemplating shift and change as a result of the process of introspection.

(d) Sir William Hamilton: Cornmon Sense Kant

Tracy considered Sir William Hamilton (1788-1856), who is scarcely remembered at al1 today, to be "by far the clearest thinker. the most profound scholar, and the most infiuential exponent of the Scottish phil~sophy'?~The evidence shows both that Hamilton was held in universal esteem as a remarkable scholar in his own era, and that his work was of particular interest to early Canada philosophers. His father, grandfather and great grandfather had al1 in sequence held the Chair of Anatomy at the University of Glasgow and Hamilton retained some of this family interest in physiology, but he approached the puzzle of mental processes from a perspective of more purely p hilosophical speculation.

By the age of eighteen, he had already graduated from the University of

Glasgow with high honours in logic and moral philosophy. His next stop was Oxford

?racy, op. cit.. at 9. In my account of Hamilton's philosophy, I am once again drawing on Tracy. Robinson and Laurie, op. cit, together with excerpts from Hamilton's writings contained within these sources. 79 on "exhibition" (schofarship) where, with a typically Scottish cornmitment to duty and zeal for self-improvernent, he astonished his professors by preparing four times the customary quantity of material for his exarninations. completing them with

"unparalleled distinction". Hamilton also studied iaw and was called to the bar in

1813 but did not practice, instead teaching first history and then logic and rnetaphysics at the University of Edinburgh for several decades.

As an historian of philosophy he was a renowned Aristotelian; he also prepared the definitive. annotated and rnulti-volumed editions of Reid and Stewart.

Hamilton participated fully in the interdisciplinary ethos of the Scottish Enlightenment. collecting and publishing his wide-ranging Articles on Education and Literature in

1852. His Lectures in Loaic and Metaphvsics were published posthurnously in 1859 but the definitive text, including the highly-regarded studies in psychology, was prepared by the Canadian philosopher J. Clark Murray in 1870 under the title, &

Outline of Sir William Hamilton's Philosophv.

In an 1836 lecture on Scottish philosophp, Hamilton was careful to dissociate himself from Hume's theological conclusions while granting him full credit for hiç rigorous skepticism which, he says, "gave the whole philosophy of Europe a new impulse and directionn and was "a necessary step in the progress of Philosophy towards truth". In particular, Hamilton points out the connection between the idealistic common sense of Reid and the idealistic rationality of Kant, both of which

54 I am drawing here on excerpts of Hamilton's writings provided by Robinson, op. cit. at 220 and following. 80 he considered to have been inspired by reaction against Hume's radically contingent causality. Hamilton's own most distinctive contribution to Scottish philosophy was his modification of Scottis h em piricisrn and Scottish common sense moral philosophy through his integration of certain Kantian doctrines. It would be fair to Say that

Hamilton's work ended the isolation of the common sense school of moral sentiment in Scotland and introduced the Kant-influenced hybrid philosophy of Scottish speculative idealism; to understand Hamilton, we need to take into account a few key

Kantian concepts.

lmrnanuel Kant (1724-1 804) studied primarily theology. mathematics and physics in Konigsberg and published his best known work, the Metaphvsics of

Morals, only in 1797 at the end of his long academic career. It is probably noteworthy that his grandfather had emigrated from Scotland and that Kant was thoroughly familiar with Scottish philosophy. Nevertheless, we can consider Kant to have renewed the Platonic ideal of supreme reason in moral philosophy and in political theory, at the same time encouraging the objective and scientific approach to law which we associate with the modemist tradition, by elevating pure procedural rationality to a highest good. After Kant, the Aristotelian thread of moral sentiment which had fascinated the Scottish Enlightenment philosophers was pushed into the background again, reemerging only with the fragmentation of the subject and the postmodern multiplication of meanings which we associate with the postmodern movement.

Kant is best known for his categorical imperative, "act only on that maxim 81 whereby you can at the same tirne will that it should becorne a universal ~aw''?~For

Kant, the equal dignity of human individuals is derived from our abiliky to make rational decisions based on Our own moral dictates; the capacity for choice is the human ability to desire or not to desire something in accordance with the dictates of reason, and our autonomy in any situation depends upon how well we are able to free ourselves from "sensible impulses" which are purely emotional or sensual.

Within the liberaf humanist mode1 of modernist law, it is because we have placed individual autonomy and rationality at the core of what it means to be human that these attributes have received the fullest protection of our courts and our statutes. But Kant distinguished the intemal moral laws generated by pure reason, which are universal because they are what we would want everyone else to do in the sarne circurnstance, from the externally-imposed juridical laws of the state. These juridical laws based on the historical fiction of a social contract could not be universal maxims. He made only one exception, the requirement that we rest content with majority decisions and not rebel against state authority56 since he assumed that ail of us crave political stability. But in general, for Kant juridical laws could constitute only a negative protection of the sphere of autonomy against interference. And

Kant's concept of negative liberty is quite different from Smith's concept of law as an institution of natural liberty since for Kant, there was no question of linking benevolence or propriety or prudence with right action. In fact, Kant insisted that only

55 Kant, The Metaphvsics of Morals (Indianapolis: Bobbs Merrill. 1965) at 296.

56 Kant, "On the Relationship of Theory to Practice in Political Right" in Political Writinqs ed. H. Reiss (Cambridge: Cambridge University Press, Y9ïO) at 77-79. 82 rationality determined whether a parücular behaviour was moral or not, holding that good behaviour inspired by sentiment has no intrinsic moral value at ail? Any appeals to the courts to temper juridical laws with appeals to necessity or to equity constituted departures from universality and objectivity. This made Kant deeply uneas? because only universality could guarantee in the Kantian Kingdom of Ends that rational beings would not be treated as means but always as ends in

Hamilton subscribed to the philosophy of comrnon sense in so far as he agreed with Reid and Stewart in the existence of primary beliefs as a given, derivable from cornmon sense experience. But Hamilton was drawn to Brown's psychology, adding the curious idea that the mind exists not solely in the brain but throughout the body because sense perceptions of touch, sight and hearing determine for the individual the Iimits of his own body as organism in contact with non-ego external objects. The other objects which exist in the material world can be known only by inference, the interna1 intellectual states of suggestion and cornparison posited by

Brown. However, as Tracy points out, Hamilton rejects the role accorded by Brown to ernotion and is very Kantian in his assertion that the whole content of this consciousness is derived from thought. or pure reason.

Hamilton argued that the phenornena produced by conscious mental sensation

RMetaphvsics of Morals, op. cit, at 290.

"'introduction to the Doctrine of Righr in Meta~hvsicsof Morals (New York: Cambridge University Press, 1991) at 98.

5QIbid. 83 constitute "facts" which are then analyzed by reason into two kinds of laws. We become aware through our powers of deduction of the first laws, the ultimate principles of reason which are necessary and universal and irreducible (Hamilton is thinking here about the axioms of logic). It is through experience and induction that we becorne aware of the second laws. what Hamilton calls the derivative or ernpirical laws based on probability (he is thinking here in a Humean fashion about the likelihood a given effect will follow upon a particular cause). AI1 that philosophy can do is to explain human consciousness and to remind us that derivative laws must not be confused with the facts of consciousness; to this extent, Hamilton acknowledges the Humean skepticism which is always inherent within empiricism.

But Hamilton posited a third quality of human cognition which seems to combine both elements of reason and to draw heavily on Reid's and Stewart's intuitions about underlying truths. Our sense experience of the facts of human consciousness fuses with our inductive and empirical powers which tell us it is probable that some irreducible and universal and necessary suprafactual phenornena exist underlying al1 of the facts of human consciousness and this is what Hamilton refers to as the "noumena" of the individual sou1 and of God as Absolute Moral Law

Giver. These noumena constituted an "Unconditioned Reality" as ground and condition for al1 the other "facts", but this is a reality not directly knowable by the human mind because we can comprehend only the relative and the finite. Hamilton's third quality of cognition owes something to the Hegelian trinity of thesis, antithesis and synthesis in accordance with Hegel's theory that we know the absolute and 84 rationality determined whether a particular behaviour was moral or not, holding that good behaviour inspired by sentiment has no intrhsic moral value at a11.'~~Any appeals to the courts to temper juridical laws with appeals to necessity or to equity constituted departures from universality and objectivity. This made Kant deeply uneasy'17 because only universality could guarantee in the Kantian Kingdom of

Ends that rational beings would not be treated as means but always as ends in themse~ves."~

Hamilton subscribed to the philosopny of common sense in so far as he agreed with Reid and Stewart in the existence of primary beliefs as a given, derivable from common sense experience. But Hamilton was drawn to Brown's psychology, adding the curious idea that the mind exists not solely in the brain but throughout the body because sense perceptions of touch, sight and hearing determine for the individual the limits of his own body as organism in contact with non-ego external objects. The other objects which exist in the material world can be known only by inference, the interna1 intellectual states of suggestion and cornparison posited by

Brown. However, as Tracy points out, Hamilton rejects the role accorded by Brown to emotion and is very Kantian in his assertion that the whole content of this consciousness is derived from thought, or pure reason.

Hamilton argued that the phenomena produced by conscious mental sensation

116 Metaphysics of Morals, op. cit, at 290.

"'"lntroduction to the Doctrine of Right' in Meta~hysicsof Morals (New York: Cambridge University Press, 1991) at 98.

118 I bid. 85 constitute "facts" which are then analyzed by reason into two kinds of laws. We become aware through Our powers of deduction of the first laws, the ultimate principles of reason which are necessary and universal and irreducible (Hamilton is thinking here about the axiorns of logic). It is through experience and induction that we become aware of the second laws, what Hamilton calls the derivative or empirical laws based on probability (he is thinking here in a Humean fashion about the likelihood a given effect will follow upon a particular cause). All that philosophy can do is to explain human consciousness and to remind us that derivative laws must not be confused with the facts of consciousness; to this extent, Hamilton acknowledges the Humean skepticism which is always inherent within empiricism.

But Hamilton posited a third quality of hurnan cognition which seems to combine both elernents of reason and to draw heavily on Reid's and Stewart's intuitions about underlying truths. Our sense experience of the facts of human consciousness fuses with our inductive and empirical powers which tell us it is probable that some irreducible and universal and necessary suprafactual phenornena exist underlying al1 of the facts of human consciousness and this is what Hamilton refers to as the "nournena" of the individual sou1 and of God as Absolute Moral Law

Hamilton was familiar with Hegel's work. It also owes something to the Aristotelian

concept of phronesis mediating between practical and philosophic reason and to his

related concept of complete justice fusing corrective and distributive justice through

equity. But Hamilton is far more Kantian in his focus on transcendent reason than either Hegel or Aristotle.

Hamifton's ideas were compatible with the traditions of Calvinism which still

permeated Scottish society in Scotland and in Canada at mid-nineteenth century.

The humility of his conclusion that human beings as created by the Moral Law Giver

achieve the pinnacle of reason only when they acknowledge the limits of their own

ignorance makes it a duty to tailor excessively far-reaching metaphysical inquiries to the requirements of religious reverence and social stability.

An element of this social engineering was at work in Canadian common sense

philosophy and in the Canadian legal institutions which evolved during the era when

Scottish Enlightenment doctrines dominated Canadian intellectual life, but there was almost always something else more principled at work. We need to look next at

nineteenth century interrelationships between Canadian philosophy and Canadian

legal education in order to understand the development of the enlightened

postmodernism which permeates Canadian legal structures and Canadian jurisprudence and Canadian legal theory now. PART III

Early Legal Education in Canada

1. The lnternality of Philosophy to Law

A. B. ~c~illop'has pointed out that by the 1880s the Scottish mind in Canada was defined by the doctrines of common sense, but fimiy linked to a consewative social ethic and less a technical philosophy than a mode of thought. Tantalizingiy,

McKillop posits that this common sense approach created a general "mental

hospitality" in Canadians, beyond those specifically of Scottish descent, which made them "citizens of the world" who were "simultaneously objective and subjective". He

believes this explains why Canadians are characteristically eager to acknowledge truth wherever it can be found, accepting or rejecting the conclusions reached by others through inquiry into the intemal operations of their own minds in the common

sense tradition.

McKillop does not expand further upon this epistemology of multiplicity or its

implications for political and moral values such as official policies of rnulticulturalism.

However, it is a theme he returns to in Contours of Canadian Thouaht published eight

years later, when he discusses the dearth of writing about Canadian intellectual

history in the context of the Canadian obsession with national identity and concludes

that "our identity is not one of harmony or consensus [but] incorporate[es] potential

1A Disciplined Intelligence, op. cit, at 30 and following. 88 for contradiction, diversity and para do^".^ Contradiction, diversity and paradox are, of course, al1 quintessentially postmodern strategies. Although "postmodern" is not a terni McKillop uses, and although he again fails to develop his theory at any great length, he does present an intriguing thesis that Canadian identity inheres in this characteristic rnethod of thinking. Our intellectual history, says McKillop, is not so much based on ideas which are substantively indigenous in themselves as it is characterized by an indigenous method of inquiry (which I would argue is derived from Scottish traditions of common sense) that is more concerned with truths introspectively confirmed than with the consolations of certainty.

Fulton H. Anderson, in his Introduction to the very useful 1952 study,

Philosophv in Canada seems to support this interpretation of the Canadian philosophic rnind when he warns against any "yearning for monism" which seeks to

produce a single structure merging al1 knowledge into a systematic uni@, pointing out that a forced merger is necessarily futile and brings genuine philosophical inquiry to a standstill. It is somewhat ironic, then, that (as we shall consider further below) the "forced mergers" or single-minded approaches to acadernic endeavour which we associate with scientific modernisrn and the cult of expertise were very much the stance sweeping over legal education at exactly the moment Anderson was writing, although on examination these mergers turn out to be less modernist than one might

suppose.

2Contours of Canadian Thouqht, op. cit, at 5-6.

3op. cit, at 3. 89 Arrnour and Trott have also stated emphatically that reason in the history of

English Canadian philosophy was dominantly "used as a device to explore alternatives, to suggest ways of combining apparently contradictory ideas, to discover new ways of passing from one idea to anothe? rather than as an instrument of intellectual force to suppress dissenting thought. They cal1 this a "philosophical federalism" which they associate generally with the Canadian political compromise of federalist structure and more specifically with the federalist structure of University of

Toronto where, in their opinion, much of Canadian philosophy originates. However, as a prelirninary to understanding this concept of federalist rnultiplicw within an evolving structure, it may be helpful to distinguish various schools as they historically evolved during the first seventy-five years or so of philosophy in Canada. We can consider the split between sectarian and non-sectarian pedagogies more generally, and the split between common sense and idealist philosophies more specifically, even if we do so only in order to consider whether the shared origins of these movernents in Scottish thought precluded tmly fundamental dichotomies, rneaning that they were never really in opposition to each other.

Although John Irving did not locate University of Toronto at the centre of

Canadian philosophy, he would have agreed with Armour and Tripp that Canadian universities more generally were the locus of developrnents in philosophy. And when he attempted his first survey of the history of Canadian philosophy in 1950, focusing on philosophy as it was taught in Canadian universities between 1850 and 1900, he

4Amour and Trott, The Faces of Reason, op. cit., at 4. suggests that one of the justifications for doing so is the central significance of philosophy to Canadian intellectual history and in particular the influence that philosophy must have had on "the country's lawyers and legislators . . . and men [sic] of affairs"? lrving lists eight universities which had been founded in central

Canada by midcentury6 but he does not point out here (as Wilfrid Campbell had done at the turn of the century, as D.C. Masters reiterated in his 1976 essay and as

Armour and Tripp were certainly very aware7) that most of these institutions had been established by Scotsmen. Pictou Academy, Queen's, Manitoba College,

Dalhousie and Knox College at University of Toronto were al1 founded by devout

Presbyterians and began as Presbyterian institutions. There was another group of

Scots who favoured the establishment of more nearly nonsectarian institutions, but a

Scottish cultural influence which is quite inseparable from the religious doctrines of

Calvinism we have already considered was equally strong in the founding of

Dalhousie, McGill, King's College at Fredericton (the precursor of University of New

5 Iwing, "The Development of Philosophy in Centrai Canada from 1850 to 1900n, op. cit. at 252. In faimess to Irving, they were mostly men of affairs in 1950.

'lbid., at 253; he includes McGill (1821). King's College at Toronto (1827). Victoria at Cobourg(1836), Queen's (1841 ), Bishop's (1843), Ottawa (1849); Trinity (1850): and St. Michael's (1 852); lrving omits mention of the Quebec seminaries dating back to the late seventeenth century or of Laval (1852) which had a faculty of law from the date of its founding. Outside central Canada and the scope of Irving's study were Dalhousie University, founded in 1818 and opened in 1838 although not effectively organized and financed until after 1849, the Baptist university of Acadia founded in 1843, the Methodist Mount Allison, dating from the 1850s and the Roman Catholic St. Francis Xavier which granted degrees after 1866. University of Manitoba was founded a Iittle later. in 1877. lrving points out that this record of establishment of postsecondary institutions was al1 the more remarkable considering that England in the same era had "apart from its ancient foundationsn (presumably Oxford and Cambridge) only the Universities of London and Durham and a University College at Southampton.

'~eeCampbell. at Chapter XX, "The Scotsman and Educationn. at 266 and following of The Scotsman in Canada, op. cit. See also D.C. Masters, 'The Scottish Tradition in Higher Education" in Reid, op. cit., at 248 and following and Armour and Tripp, ibid., at 3 and following and at 40 and following. Brunswick), King's College at University of Tor~nto,~and Woodstock College which was later amalgamated into McMaster (originally a Scots Baptist institution) in nearby

Hamilton.

What 1 propose in this section of my paper is to consider what was happening in legal education in Canada in Ontario, in the Maritimes and in Quebec before 1900 and to compare developments in legal education with developments in Canadian philosophy in the sarne academic centres during the same period when the influence of Scottish common sense and Scottish speculative idealism were strongest. To confine myself to those three geographic areas alone is to ignore important developments in the west of Canada. However, other writers have documented the active role played especially by Maritimes and Ontario legal scholars and practitioners in establishing law schools in Manitoba and points further west after 1900.9 One can speculate that the western legal pioneers took some of these ideas with them, where they would have been met by their own pockets of Scottish immigrants and further modified by the social conditions particular to the place and the time.

8A third King's College, originally founded in Windsor, Nova Scotia in 1788, was an emphatically Anglican institution which specifically prohibited any member of the university from attending at "the Romish mass or the meeting houses of Presbyterians, Baptists or Methodists . . . or of any other Dissenters from the church of England . . . or . . . befing] present at any rebellious or seditious meeting." See Encyclopedia Canadiana, op. cit., vol. 10 at 195. This King's College still exists in Halifax.

eSee, for example, Christopher Moore, op cit., at 158 and following; W. Wesley Pue, "Common Law Legal Education", infra at 662 and following, in particular for the valuable bibliographic sources cited in the footnotes; Donald H. Clark, "Legal Education in Saskatchewan: the Last Ten Years" (1982) 7 Dal. L.J. 2 375; and Donald 1. Ish, "Legal Education in Saskatchewan, 1982-1988" (1989-90) 12 Dal. L.J. 532. University of Manitoba established a law school providing concurrent academic and practitioner training in cooperation with its Law Society in 1914; after 1964, the Ontario mode1 of a three year degree followed by articles and bar admission examinations was introduced. There was a college of Law at University of Saskatchewan in 1913, a faculty of law at University of Alberta in 1912 at Calgary until 1921 and then at Edmonton; the University of British Columbia law school was not established unfil 1945. 92 David H. Flaherty has warned about the "rkk of attempting to move too cavalierly from the legal history of Ontario to that of Canada" but nevertheless argues that there are several good reasons for beginning with this province - because the

Law Society of Upper Canada was established here early, in 1797, and because the

Ontario bar and bench has been disproportionately influential at the national level.1°

Referring to the 1842 census figures we have already cited which evidence the large scale British immigration to Upper Canada that had begun in the 1820s. Flaherty asks rhetorically "What ideas about the legal order did the Scots, for example. bring with them?"" But this is a proposal for further research, and not a question he goes on to answer.

To reiterate the obvious, state legal order in early Canada was English (or

French, in Lower Canada). Direct irnport of Scottish law is therefore unlikely; we need to look instead for the import of Scottish ideas about legal order into Canada through Scottish culture, generally, and more specifically (because this was a culture unusually preoccupied with education and with philosophy) through the teaching of philosophy within educational institutions in Canada. Unfortunately, even though a considerable portion of the writing documenting Canada's earliest legal history was devoted to questions of legal education, there is still very little solid information available about the impact of early Canadian philosophy or intellectual history on

10 David H, Flaherty, "Writing Canadian Legal History: An Introduction" in Essays in the Histow of Canadian Law vol. 1 (Toronto: University of Toronto Press and the Osgoode Society, 1981) at 20.

11 Ibid., at 27. 93 legal education." In attempting to trace out these connections now, we are reduced to what Flaherty calls "informed spe~ulation".'~

Philosophy would have been unquestionably "intemal to the ideology" of the legal profession well through the 1880s at least, says Wesley Pue. In his opinion. law students then would have taken it for granted that an understanding of philosophy was fundamental to the practice of law, even though today's "modernists" might easily consider philosophy completely irre~evant.'~ Because modemists have more or less dismissed philosophy, rny rather extended frolic through the doctrines of moral sentiment and common sense thought in the previous section of this paper was a necessary preparation to this one. It is clear enough. for example, that Richard

Posner and the law and economics movement do not understand Adam Smith. It is equally obvious that Ontario premier Mike Harris has no familiarity with the inherent morality of the tradition of common sense philosophy which his slogans seem to invoke to legitimize his social revolution. We can no longer take it for granted that students of law will recognize and understand the intellectual context in which our

12 See, for example, Peter D. Maddaugh, A Biblio~raphvof Canadian Lesal History (Toronto: York University Law Library. 1972); even twenty-five years ago, more than 60 articles had been written about legal education in Canada dating back as early as 1864, with the majority of these articles focussing on the historical development of Ontario's legal education. A search of the periodical indices tums up several dozen more artides about Canadian legal education from an historical perspective in the last fifteen years, but most of these have more to do with buildings and personalities than with philosophical ideas or intellectual history in relation to legal education.

13 Flaherty, ibid., at 12.

14See Wesley Pue, "Common Law Legal Education in Canada's Age of Light, Soap and Water" (1996), 23 Manitoba L.J. 3 654 at 660, fn- 29. As we will see, the first major change made by Caesar Wright when he took over the Faculty of Law at University of Toronto in 1949 was to eliminate the required philosophy courses from the curricutum. 94 legal history evolved.

The concept of interna1 and external approaches to legal history referred to by

Pue was probably first explicitly introduced into Canadian legal history scholarship by

Flaherty, who acknowledged that he drew it from the writings of American legal

historian Roger W. Gordon. Sources of legal history "within the box" - statutes,

reported cases, biographies of judges, and so on - were for Gordon and for Flaherty always best illuminated through reference to external history, and in particular to the

"social context of law and its social effect~".'~This is a thesis quite compatible with

Adam Smith's theory about the interactive evolution of law and society in response to shifting consensus and also, of course, compatible with the pluralism of sources of

interest to the new legal historiographers. Flaherty nominates University of Toronto

legal historian R.C.B. Risk as leading exemplar of this historiography approach; he credits Risk with pioneering Canadian efforts to seek out and explicate the

characteristically overlapping elements outside and inside the box. And Flaherty

identifies three such elements: "the influence of societal values on the law; the effect of law itself on the mind and events of society; and the structures, procedures and functions of such institutions on the legislature, the courts and the legal

profe~sion".'~

According to Wesley Pue, several "storylines" have dominated historical

accounts of Canadian legal education; what he calls the "progressive developmentt'

15 Flaherty, op. cit. at 12.

16 Ibid., at 8. 95 approach is dominant. but in Ontario, a great deal of attention has been devoted to the heroic battle between practitioners and acadernics for control of legal education and their "supposedly irreconcilable visions".17 The battle culminated in the rather late triumph of academic legal education in Ontario at University of Toronto after

1949 by Caesar Wright, and this is the tale which has dominated the history of legal education in Canada. At the risk of perpetuating Ontario centrism. then, I will not only begin with Ontario but also return to it briefly, to tell the Wright story in the context of contemporary developments in Canadian philosophy at the end of my survey tour.

2. Upper Canada: Common Sense and Speculative Idealisrn

Certainly, legal historians have recognized that when the Law Society of Upper

Canada was granted statutory powers of self-government it quite naturally claimed control of eligibility to practice law. Added to those British subjects who after 1785 had been licensed to practice by the governor were new lawyers who had completed five years' articling, paid the fee and signed the rolls in accordance with the society requirements; legal training was exclusively focused on practitioner skills. No entrance exarninations were required until 1820. It is somewhat ironic, given this practitioner bias, that for a considerable nurnber of years the examinations tested

17 Pue, op. cit., at 657; Pue cites Brian D. Bucknell, Thomas C.H. Baldwin and J. David Lakin, "Pedants, Practitioners and Prophets: Legal Education at Osgoode Hall to 1957" (1968) 6 Osgoode HaIl L.J. 137 as a particularly influential source of this second myth in relation to legal education in Ontaho. 96 mainly translation from the classics rather than knowledge of substantive law.18

However, the explanation probably lies in the lack of clear distinction in that era arnong the disciplines of history, political science, philosophy and law as provided in the classical sources. We need not assume (as legal reaiists might) that its only function was to screen out candidates for admission who did not corne from the appropriate social class.

By the 1830s the apprenticeship obligation had been reduced to three years for university graduates. Construction had begun on Osgoode Hall in 1825; between

1832 and 1889 various classes were provided on a somewhat intermittent basis in the east wing by the Law Society, most of the time on a voluntary basis (with special classes for university graduates) although for a period after 1861 attendance was mandatory. Students were also required to attend the courts daily for a total of eighteen months spread out over their apprenticeship, a process known as Term keeping". This requirement was only discontinued in 1871, the year before the society's classes were formalized into an institution known as Osgoode Hall Law

School.

King's College at University of Toronto, perceived by the Law Society as a challenge to its statutory authority to control legal education from the date of its founding, received its charter in response to a "mernorial" addreçsed to the

'Vhere are many sources for this kind of information which is well documented. See, for example, Bora Laskin, The British Tradition in Canadian Law (London: Stevens & Sons, 1969) ai 74 and following; see also William Renwick RiddeII, The Leqal Profession in Upper Canada in Its Earlv Periods (Toronto: The Law Society of Upper Canada, 1916); G.B. Baker "Legal Education in Upper Canada 1785-1889" in Essavs in the Histow of Canadian Law, op. cit. vol. 2 at 49; and Chn'stopher Moore, The Law Society of Upper Canada and Ontario's Lawvers 1797-1997 (Toronto: University of Toronto Press, 1997). 97 lieutenant-governor by John Strachan in 1826. Although an Anglican, he had been educated at Aberdeen and St. Andrews. Strachan is credited with transposing the

Scottish tradition of lectures to Canadian university life, with their democratic interaction between professor and students so different from the English tutorial system, together with a Scottish curriculum expanding throug h philosophy and science what was then the English university focus on the classics already noted at

~çgoode.'~However, he was rebuffed in his proposal within that mernorial to establish King's College as the centre for academic legal education in Upper Canada

(Strachan would have left bar admissions to the Law Society), a proposal he justified on the grounds that it would help assure students' loyalty to the British Empires2' In fact, the first students were not admitted to King's College until 1843 and by that time the Osgoode classes had been running for over a decade.

Strachan was also instrumental in establishing both Trinity College, as an

Anglican institution, and then University College, which was not affiliated with any religious denomination. But regardless of the religious framework of individual colleges, Campbell tells us that half the students, most of the senate and faculty, and al1 of the early presidents at the University of Toronto were ~cotsrnen.~'And although it was not necessary to have a university degree or any university

19~.c.Masters. '7he Scottish Tradition in Higher Educationn in Reid, op. cit., at 248.

20 Christopher Moore. The Law Societv of Upper Canada 1797-1997 (Toronto: University of Toronto Press, 1997) at 78-9.

21 Ibid.; he lists Strachan, McCaul and Wilson as early Scots presidents; professors Young (metaphysics) and Wright, Macallum, Mclennan and Lash-Miller (sciences) as the most distinguished of these professors. preparation at al1 to get into Osgoode until 1927, it is helpful to know that by the late

1850s fully two-thirds of the students admitted to the law society did have university degrees*; many of these students would have graduated from nearby, Scots- dominated University of Toronto and many of them would have taken undergraduate courses in philosophy either directly or through their classes in classics, theology or history.

Irving focuses in on philosophf3 as it was taught at Toronto, Queen's and

McGill, noting the early fusion among the disciplines of theology, philosophy and psychology which we would anticipate from our survey of the cornmon sense philosophers and reminding us that it would not have been possible to teach philosophy from anything other than a religious reference point in early Canadian academic ~ife~~.He begins with Canada's first academic philosopher, one James

Beaven (1801-1 875) who was not a Scotsman but an Oxford-educated clergyman of

22 G.B. Baker, op. cit., at 76; Baker does note that the number of university graduates had dropped to oniy 30% by 1889.

23 In rny outline of the impact of Scottish Enlightenment philosophy on Canadian philosophy, I am relying on the 1950 symposium papers by John A. Irving, Charles W. Hendel, Allison H. Johnson and Rupert C. Lodge published in Philosophy in Canada, op. cit; on John A. Irving, "The Development of Philosophy in Central Canada From 1850 to 1900" (1950) XXXl Can. Hist. Rev.3 at 252; on Leslie Amour and Elizabeth Trott, The Faces of Reason, An Essav on Philosophy and Culture in Enqlish Canada, 1850- -1950 (;Waterloo: Wilfrid Laurier University Press, 1981); on Leslie Armour, The ldea of Canada and the Cnsis of Community (Ottawa: Steel Rail Press, 1981); on A.B. McKilIop, A Disciplined Intelliaence. Critical Inquiry and Canadian Thought in the VictorÏan Era (Montreal: McGiil-Queen's University Press, 1979); and on A. B. McKillop, Contours of Canadian Thouqht (Toronto: University of Toronto Press, 1987). 1 have also referred to original source materials wntten by the philosophers whose works i discuss.

24At the 1950 symposium on philosophy in Canada, Rupert C. Lodge stated that a condition of his appointment to the Chair of Logic and History of Philosophy at University of Manitoba as late as 1920 was his membership in good standing in the Anglican Church, although he did indicate when questioned that his "attitude toward dogma [was] more rationalistic and less literal than that of a minister addressing his congregation from the pulpit" and this was apparently acceptable to the hiring cornmittee. See Lodge's "Comments II" in Philosophy in Canada, op. cit. at 46 fn. 2. 99 the Church of England appointed to the Chair of Divinity at King's College in 1842.

After this position was abolished when University of Toronto was reestablished on nonsectarian lines, much to Beaven's own dismay, he was appointed to the Chair of

Metaphysics and Ethics at Toronto in 1850.

It was under some duress (mostly because he could not afford to retire) that

Beaven began dutifully teaching the Scottish Enlightenment philosophy which was then fashionable, together with copious quantities of Aristotle and Cicero in the original Greek and Latin. However, his published works consisted of collections of sermons, religious catechisms for the use of practising Anglican clergymen and an

Elements of Naturai ~heologf~inwhich he tried to establish (in a manner consistent with Reid) that natural theology was fully rational. There is a certain Scottish pragrnatism, too, in Beaven's account of a lengthy vacation journey to various lndian missions which he had undertaken in the summer of 1846~~.seeking out priests to serve as missionaries arnong the heathen but also providing detailed information about the appropriate construction of churches and fences and roads for the practical use of such priests if he was successful in his recruitment efforts.

Beaven's successor at University of Toronto was the Scots-born George

Paxton Young (1819-1889) who had obtained an M.A. in mathematics and philosophy at the University of Edinburgh before emigrating to Canada as minister of Knox

Church in Hamilton in 1850. As a young man, Young had much greater persona1

25James Beaven, Elements of Natural Theolow (London: F. and J. Rivington, 1850)

26James Beaven, Recreations of a Lonq Vacation, or A Visit to lndian Missions in Upper Canada (Toronto: H. and W. Rowsell, 1846) 1O0 enthusiasm for the Enlightenment and in particular for the philosophy of Sir William

Hamilton (under whom he studied) than had Beaven. By 1853 he had begun teaching at Knox College where his versatility as an academic was such that he taught in almost every department in the university over the next ten years including mathematics, Oriental languages and classics as well as philosophy and theology.

However, in 1864, as a result of his studies in Kant which made it increasingly difficult to reconcile Calvinist doctrines of the elect with notions of moral agency grounded in rational autonomy, Young experienced a ternporary but critical religious crisis. He felt it was necessary to resign his academic position (where he might shake the faith of impressionable young people) and to withdraw frorn the rninistry.

Instead, for four years he worked under Egerton Ryerson, who was the founder of Methodist Victoria University and of public education in the province of Ontario and waç himself strongly influenced by Scottish democratic ideals of education.*' As a school inspecter in the Scottish tradition, Young helped draft education legislation and wrote three highly influential reports on the structure of the public and high school system in Ontario. With Humean integrity he returned to academia, accepting the

Chair of Logic, Metaphysics and Ethics at University College in 1871 only on condition that he no longer be required to teach a theology to which he could no longer fully subscribe, although eventually he did reestablish his own church mernbership.

n See Armour and Tripp, op. cit., at 32 and following, who point out that Ryerson nevertheless chose Irish textbooks and an Irish School Inspector, Thomas Robertson, to become the first principal of the Toronto Normal School where his new teachers were to be trained. 101 Young published little in philosophf8 but more widely in mathematics.

Contemporary accounts indicate that his philosophy lectures were wildly popular and a posthumous collection of notes made by a student help us reconstruct their substantive contente2' Young formulated an increasingly Kantian version of

Hamilton's highly spiritual and transcendent idealism in which he argued that each of us is introspectively conscious of himself as a free agent, a doctrine of particular comfort to those disturbed by the increasingly intrusive forces of scientific rnaterialism and evolution. Drawing on these fragmentary notes. it seems that Young achieved a fragile reconciliation of Calvinist determinism with the Kantian autonomy of the moral agent. He distinguished between the agent's inner perspective (where he believes himself to be free to choose to act on the basis of his strongest motivation, although he is of course always constrained in his reasoning by the context of his own necessarily lirnited experience) and an external rational order which he cannot fully know but which nevertheless serves as an ideal towards which he can aspire; this latter concept shows very clearly the lingering influence of Hamilton on Young.

Armour and Tripp consider Young's compromise to offer "a philosophy for [the] increasingly pluraiist society . . . which Canada was becoming at the tirne of

C~nfederation".~~

28 George Paxton Young, Freedom and Necessity (Toronto: Adam, Stevenson, 1870). 1 am again relying on Armour and Tripp, op. cit. at 85 and following as my primary source for interpretation of Young.

29 George Paxton Young, The Ethics of Freedom ed. James Gibson Hume (Toronto: University of Toronto Press, 191 1)

30 Ibid., at 104. 102 An early attempt, in 1860, to establish a iaw school at Queen's had failed

because the practitioner-instructors could not be adequately paid and because the

law society refused to eliminate its requirernent that graduates spend four additional terms in or ont o.^' As late as 1888, Queen's University principal George Munro

Grant was content to leave the training of lawyers to the law society, arguing that a solid arts degree was the best preparation for legal studies that the universities could

pr~vide;~'there was no law school at Queen's until 1957, after the dispute over academic control of legal education between the universities and the Law Society had been resolved. But rnany Queen's graduates did pursue legal training at Osgoode, and every Queen's arts degree included a required course in philosophy, taught by

professors who arrived at this "Aberdeen of Canada" schooled in Scottish

Enlightenment traditions.

Queen's first professor of philosophy was James George (1801-1 87O), appointed to the chair of Logic and Mental and Moral Philosophy between 1853 and

1862, also Scots born and educated at St. Andrews and Glasgow. He came to

Canada via Saratoga where he had been a Presbyterian minister, a position he also held first in Scarborough and later in Stratford before and after his seven-year stint at

Queen's. Like Beaven and Young, George was too busy teaching and with administrative duties (he also served as acting principal of Queen's for four years) to produce much in purely philosophical writing. A sermon, delivered shortly after the

31 See Kyer and Bickenbach, op. cit, at 26.

32 Christopher Moore, op. cit., at 168 and fn. 53. 1O3 Rebellion of 1837 but not published until afler his death, expresses in no uncertain terms the duty of citizens to obey their duly elected govemmenp3, but l~inginsists that George was more than a political reactionary, and that he was much less interested in moral or political philosophy than in the scientific explorations of mind through the new philosophy of psychology."

Armour and Trott see in George's psychology an increasing focus on reason instead of intuition as a practical tool of moral deve~oprnent.~~At any rate, it is obvious that he was an extremely skilled speaker in the rhetorical traditions trançmitted into the common sense school from Aristotle through Reid, able to appeal to the ordinary listeners as well as to students. One tribute to this speaking skill was the response of a group who had attended an 1857 lecture delivered by George at the Kingston YMCA on the relationship between Scottish poetry and the Scottish

ames es George, "The Duties of Subjects to their Rulers", in Thouahts on Hiah Themes (Toronto: Campbell, 1874). George sounds quite Kantian in this excerpt: 1 urge obedience to the Government under which we live, because I believe it to be substantially a Govemment of law and of justice. I stand up zealously in its defence because it is rny solemn conviction that whatever has been wrong in its administration rnay be corrected by constitutional means, while I would regard its overthrow as the sorest calamity, of a temporal sort, that could befall this Province. . . Cited in John A. Irving, "The DeveIopment of Philosophy in Central Canada from 1850-189On, op. cit, at 266-

34 Irving, ibid., at 267-8, cites George's 1859 lecture, "What is Civilization?": Philosophy, properly so called, has never civilized and never will civilize the popular mind. . . . Philosophy may sit as a queen on her throne, if she only teaches Science and Art, but if she attempts to be an instructress in ethics and to lay down principles for social life and civil govemment, she will utter nothing better than pretty rheton'c or feeble logical theories, to which men may Iisten, or on which they may cunously speculate; but from which they never can draw principles that shall bind their conscience or regutate their moral conduct For that, said George, we require religion.

35Amour and Trott, The Faces of Reason, op. cit., at 47. rnir~d~~.The following day. the young men in attendance presented hirn with a

signed petition seeking its publication. Although George demurred that it had been

prepared in a popular style unsuited for serious acadernic consideration, he cornplied

on the grounds that the speech style was rhetorically appropriate for discussion of this type of poetry which had also had been written in a popular style. and which he

nevertheless considered to be the "cream" of the thinking of the Scottish people.

George was not only a skilled speaker, but apparently also an extremely

handsorne and appealing figure who ultimately was compelled to leave Queen's at the centre of a scanda1 which dragged hirn through the courts for some eleven years.

He was alleged to have fathered the illegitimate child of the sister of a faculty

member and roundly condemned in poetry as a fra~d~~whose intellectual prowess far outstripped his moral virtue. Nevertheless, from Stratford (where he was

permitted to resume his pulpit as a Presbyterian minister), George continued to exercise his very considerable rhetorical skills in a vein which continued to draw on the doctrines of the Scottish Enlightenrnent. His account in one sermon of justice as

"the preservator of rights, when they are possessed, and the of them, when taken away" is congruent with Aristotle's concept of corrective justice and

Hutcheson's definition of rig hts inhering in right action. In that sermon, George

praises Great Britain for acting against its own economic interests when it ended the slave trade throughout the empire and paid twenty million for manumission. He ends

36 James George, A Brief lnsuiw into the Oriqins of the Poetic Element in the Scotüsh Mind (Kingston: James M. Creighton, 1857).

37 Arbour and Trott, op. cit. at 47. 105 on a characteristically fiorid note, "Eternal justice said, do the riaht thing. Do vour du&, let the oppressed go free."38 The angels rejoiced, he tells us, and God approved.

Whether or not that is so, George's preaching here sustains Calvinist du@, refiects the intuitive morality of Reid and Brown and Stewart and sustains the integration of economic theory with moral sentiment fundamental to Adam Smith at the same time that it (not incidentally) exhorts support for established political order.

It is difficult, however, to see in George proof of Aristotle's assertion that a good person demonstrates his morality through the appropriate choice of rhetorical instrument.

John Watson (1847-1 939) is credited by Irving as being the first Canadian philosopher to earn an international reputation. Again Scots-born, he studied six years at University of Glasgow before arriving ai Queen's in 1872 where he taught logic, metaphysics and ethics for a fifty-two year span during which philosophy was a compulsory subject for al[ arts and science students. Best known as a Kantian,

Watson also generated journal articles on a wide range of topics in the eclectic and interdisciplinary tradition from which he came, including literary criticism, art criticism, theology, and cornmentary on current controversies including politics.

Watson, like Young, was introduced to Kant through his studies of Hamilton; he also studied under the Hegelian, Edward Caird, at Glasgow, but Watson's idealism was less absolute than Caird's. He became a noted proponent of the school known

38James George, The Mission of Great Britain to the Worid, Or some of the lessuns which she is now teaching (Toronto: Dudley & Burns, 1867) at 13 and 17. 1O6 as objective idealism -- objective because still rooted in common sense empirical observation of the material world. Watson's first lecture on arriving at Kingston asserted an integration of science. religion and philosophy verging dangerously on the kind of monist fusion deplored by Anderson. and concluded with a ringing endorsement of a curiously hybrid Kantian-Calvinist conception of duty:

the highest lesson that Ethics has to teach is that only by unity with the divine nature. only by the elevation of his individual will to the high standard of duty, can man enter into the glorious liberty wherewith the truth makes free.39

Only a twenty-five year old in his first academic position could have had this kind of certainty, a certainty which nevertheless echoes Hamilton's cautions about the appropriate limits of human knowledge. However, Watson's idealism had an enormously liberating effect on Calvinist determinism in the Presbyterian Church in

Canada preparatory to United Church union in 1925, in part because several generations of Presbyterian ministers found his prose comprehensible enough to read it and to include his ideas within their sermons.

Watson believed in the very Scottish method of teaching his students by requiring them to engage with excerpts from Kant's original texts, in translation, and then questioning them intently on their own responses and their own interpretations of these texts; Watson's Philosophv of Kant, as Contained in Extracts from His Own

Writinas, was reprinted eight times between 1882 and 1934 and widely used in universities al1 over North America, but his Philoso~hvof Kant Explained, which

39 John Watson, "The Relation of Philosophy to Science", cited in Irving, ibid., at 271. 1O7 undoubtedly would have been very usefui preparation for these gentle grillings. did not corne out untii 1908. An 1895 collection of annotated excerpts from Comte, Mill and Spencer was republished as the Outfine of Philosoohy in 1898 and also subsequently revised in multiple editions. This text became well-known as the standard introductory survey in philosophy. and in its introduction, Watson calls hirnself a "speculative idealist" which he identifies as a doctrine asserting the possibility of rationally knowing reality as it actually exi~ts.~~

Irving tells us that Watson's pedagogical methods became particulariy popular at Harvard. Although it might be tempting to speculate that Watson's technique of requiring students to provide their own reasoned responses to original texts was a source of the Harvard casebook approach (later imported to Canada with Caesar

Wright's reform of legal education) the dates unfortunately do not seem to cooperate.

It was in 1870, twelve years before Watson's first edition, that Christopher Columbus

Langdell became Harvard dean4' and he is generally credited with discovering the new worfd of law as a modernist science.

ln a 1958 assessment of Watson's substantive contribution to Canadian philosophy, George P. Grant located Watson as the most eminent among a circle of

Canadian idealists who taught in late nineteenth and early twentieth century philosophy departments right across Canada. from Dalhousie to the University of

40 Irving, ibid., at 275.

4 1 Moore, op. cit., at A65. See atso Kyer and Bickenbach, op. cit., at 15 who point out that the new Harvard president, Charles W. Eliot, who had initiated a casebook approach in the training of scientists to encourage them to extrapolate general principles from specific experimental results, might have recomrnended that this technique be applied also in the law school. 1O8

Alberta, but Grant questions whether these idealists had much direct influence on

Canadian life beyond academic circ~es.~~However, Leslie Armour considers

Watson to be an important proponent of the characteristic Enlightenment stance that individuals know themselves only through their accumulated experience of relationships among other people within complex social structures, deriving identity through c~mrnunity~~,and this is a notion which Armour considers to be integral to the cornmonly-held Canadian concept of identity. The evidence of Watson's own life indicates that he was deeply involved both in the Kingston cornmunity which became his adopted home and at Queen's, where he was honoured as one of the six "rnakers of the University". And throughout his entire distinguished career at Queen's, Watson and his colleagues would have been teaching the required philosophy courses taken by students heading off to Osgoode as part of the liberal arts pre-law programme.

3. The Maritimes: An lntegrated Tradition

Wesley Pue criticizes John Willis for perpetuating the myth of the dichotomy between academic and technical training in legal education in his account of the

42"~hilosophy'.in Encvclopedia Canadiana, op. cit. Vol. 8 at 183. Grant mentions J.G. Schurrnan J. Seth and J.L. Stewart at Dalhousie, J. Macdonald at Alberta and R.C. Lodge at Manitoba as adherents to this school. Irving also mentions Watson's impact on several generations of Canadian academics across many disciplines, including philosopher J.M. MacEachran at Alberta, English professor R.A. Wilson at University of Saskatchewan, and Dean of Divinity A. Dawson at Emmanuel College in Toronto.

43Armour, op. cit., at 71 and 115. history of Dalhousie Law School, published in 1979." From Pue's perspective. the pervasiveness of this rn~th~~is another example of the centrism of Canadian legal history which he joins Flaherty in deploring, first on the grounds that it factually ignores the existence of many learned practitioners in Canada who themselves advocated strongly academic and theoretical legal education and secondly because it obscures the plurality of sources of debate in Canada about legal education? At

Dalhousie Law School -- the first university law school in Canada, established in 1883 within an institution that already had three solid decades of academic leadership behind it47-- there was from the very beginning an integration of professional and liberal acadernic education.

But Dalhousie was not even the earliest experirnent with Maritimes academic legal education. Beamish Murdoch, Nova Scotia's first legal historian, had by 1833 prepared a four volume Epitorne of the Laws of Nova Scotia, modelled on

Blackstone's Commentaries, and as early as 1868 he offered what seems to have been a very scholarly lecture on the "Origin and Sources of the Law of Nova Scotia"

44 Pue, "Common Law Legal Education", op. cit., ai 659; citing John Willis, A History of Dalhousie Law School (Toronto: University of Toronto Press, 1979).

45 Pue points out that the same myth govems in Jack R. London's account of legal education in Manitoba, "The Admissions and Education Comrnittee: A Perspective on Legal Education and Admission to Practice in the Province of Manitoba - Past, Present and Future" in Cameron Ha~ey,ed., The Law Society of Manitoba, 1877-1977 (Winnipeg: Peguis Publishers, 1977), and also in John P. S. McLaren, 'The History of Legal Education In Cornmon Law Canada" in Roy J. Matas and Deborah J. McCawley, eds, Leqal ducati ion in-canada: Reports and Backqround Papers of a National Conference on Leoal ~du&üon held in Winnipeg, Manitoba. 23-26 October, 1985 (Montreal: Federation of Law Societies of Canada.

46 Pue, "Common Law Legal Education", op. cit., at 660.

47 Dalhousie was founded in 1818. but did not open until 1838; only afier 1849 did it have the financing and administrative stability to function effectively. 110 to the Law Students Society in Halifax as part of their bar admissions training."

Dalhousie was also preceded by a short lived Halifax Law School in 1874 and an attempted University of Halifax Law School, unfortunately equally unsuccessful. Both of these were founded by Robert Sedgewick, the son of a Scots Presbyterian minister who had graduated from Dalhousie in arts in 1867. Forced to travel to Ontario for formal legal training, Sedgewick recognized that (especially after Confederation) there would be a need for better legal education at home if local lawyers were to compete with the Ontario bar in national affairs4'

It is also helpful to realize that the history of the law courts in the Maritimes was already 160 years old when Dalhousie came on the scene. A Court of

Judicature was established at Annapolis as early as 1721 to try criminal and civil matters; when Cornwallis landed with his immigrants to found Halifax in 1749, he built on these established legal traditions a Court of Cornmon Law and a separate,

English-style Court of Chancery consisting of the Governor as Chancellor together with members of council which maintained equitable jurisdi~tion.~~In contrast,

Upper Canada had no Chancery Court until 1837, with the result that there was very

?agis. op. cit. Appendix at 185 and following.

"philip Girard, "The Roots of a Professional Renaissance: Lawyers in Nova Scota, 1850-1910" (1991) 20 Man. L.J. 148.

50 Charles J. Townsend, History of the Court of Chancen, in Nova Scotia (Toronto: Carswell Co., 1900; the chancery court was abolished with statutory refonn in 1825. See Philip Girard, The Maritime Provinces 1850-1903" (1993), University of Manitoba Canadian Legal History Project Working Papers Series, which details Maritimes reform of statute law in Nova Scotia in the 1820s and '30s; in New Brunswick in 1854, and in Prince Edward Island in 1862. And see also Law in a Colonial Society: The Nova Scotia Experience. DalhousieIBerkelev Lecture on Leqal History ed. John A. Yogis, Q.C. (Toronto: The Carswell Co. Ltd.. 1984). III considerable confusion and amateurish ad hockery in the administration of whole areas of law in Ontario, such as mortgages and trusts. which the cornrnon law could not properly address."

But to a much greater extent than in Ontario. the Maritimes had always placed a strong focus on an expertise in practice which included academic preparation for law. Nova Scotia and New Brunswick were not separated until 1784; the New

Brunswick legal tradition was strongly influenced by the influx of highly educated and

"thoroughly professional" Loyalist judges and lawyers who ernigrated to the Maritimes after the Arnerican Revolution, a period well documented by D.G. ~e11.'~ Philip

Girard's statistics contribute to the story; between 1840 and 1929, at a time when a total of only eleven law students from Ontario pursued legal education at Harvard, there were 85 students from Nova Scotia and 113 from New Brunswick, of whom al1 but a couple returned to the Maritimes to practi~e?~To a rnuch greater degree than

Osgoode Hall. Dalhousie Law School was always in direct cornpetition with the best liberal legal education that the American system could offer and its first dean, Richard

51See Christopher Moore, op. cit-, at 35-36. In 1873 in England and after 1881, beginning in Ontario, Judicature Acts merged the administration of equity and common Iaw within the general law courts across Canada.

52 D.G-Bell, "The Transformation of the New Brunswick Bar, 1875-1830, From Family Connexion to Peer Control", Papers Presented at the 1987 Canadian Law in Historv Conference, vol. 1 at 240.

53 Girard, op. cit.. at 165. New Brunswick established its own law school in 1892, evolving out of the University of King's College of Windsor, Nova Scotia. with full recognition of academic fegal education by tfie Bamsters' Society of New Brunswick legislated in 1901; University of New Brunswick Faculty of Law absorbed this school in 1923. See Laskin, op. cit., at 84 and W.F. Ryan, "The University of New Brunswick Faculty of Law" (1965-66) 16 U.T. L.J. 172. 412 Weldon, was himself strongly infiuenced by the Harvard Law School rnode~.~~Far from establishing the preeminence of the Ontario model, the evidence indicates that

Osgoode did not begin to strengthen its teaching until a later Dalhousie dean, D.A.

MacRae, took a position as a full-time lecturer there in 1924.55

This is the context, then, in which we need to look at the development of

Canadian philosophy in relation to Maritimes legal education. and William Lyall (181 1-

1890) provides a conveniently traceable transmission of Scottish common sense doctrine into the Atlantic provinces. Lyall came to Knox College at University of

Toronto in 1848 from Glasgow and Edinburgh where he had taught theology and philosophy. Displaced two years later by Young, he taught in a number of small

Maritimes colleges until he landed at Dalhousie in the Chair of Logic and Psychology in 1863. He had already published his one significant work in philosophy, the thick

Intellect. the Emotions. and the Moral ~ature~~,before he became consumed with the administrative duties at Dalhousie which took up so much of his time for the remainder of his academic career.

M~Killop~~simply identifies Lyall as a disciple of Reid and Brown who atternpted to reconcile some of Hume's concepts of causation within a frarnework of

Christian doctrine by drawing on common sense introspection as a source of

YSee John Willis. op. cit., at 31-3, cited in Kyer and Bickenbach, op. cit., at 28.

55 Laskin, op. cit.. at 84.

%illiam Lyall, Intellect. The Emotions. and The Moral Nature (Edinburgh: Thomas Constable; London: Hamilton Adams, 1855)

57 A Disciplined Intellisence, op. cit., at 34 and following. 113 assurance about the existence of a divine power. However, Amour and Tripp

provide a much more detailed and suggestive account of Lyall's moral philosophy.

They point out as well that, despite the fact that there was much earlier Scottish settlement and earlier establishment of Scottish-influenced seminaries in the

Maritimes than in Central Canada, it was only with the arriva1 of Lyall that Maritimes

philoso phy was established as a discipline somewhat separated from theo~ogy.~~

Lyall agreed with Reid and Stewart that certain elements of knowledge and

belief are intuitively self-evident, such as the existence of the material world as a

matter of common sense, but like Brown he was particularly interested in emotion as a source of morality. lmmediate emotions in response to particular material objects connect us to the world, a basic moral emotion similar to Hutcheson's concept of

benevolence. This kind of response gives place on rational reflection to the

"affection" which inspires us to take action, and the most important of these affections is love of an object for its own sake. Through reason, we sift and sort among our experiences of love and corne to understand that the only underlying object capable of sustaining such affection is being itself in the largest context. something like

Hamilton's concept cf Unconditional Reality.

Lyall carefully distinguished kinds of causation. Our common sense experience of causation in the material world does reveal most of the time that there

is a rather straighfforward one-to-one relationship between cause and effect, he thought; in this sense, he rejects the complexity of Humean causation. But about

58 See Armour and Tripp, op. cit., at 61 and following; 1 am relying on their account of Lyall and of Maritimes philosophy more generally in my brief survey, following. 114 emotional causation he was much more skeptical, recognizing its inherent multiplicity and ambiguity. A plurality of emotions may give rise to a single act, and 1 may never be possible to determine a single emotional motivation determining the moral content of any particular action; and here, Lyall is much closer to Hume. That is why, for

Lyall, the focus in Kant's categorial imperative on pure rationality and autonomy provided only an inadequate description of the human experience of moral decision- making. Lyall, like Smith, was interested in the motivation for moral behaviour but for

Lyall that emotion need not be precisely identifiable as benevolence or propriety or prudence. However, for Lyall Kant's account failed to consider how original moral emotions function as the intuitive engine of the rationality which is essential to moral analysis.

How much effect did Lyall have on the teaching of law at Dalhousie, or more generally? Laskin mentions the early isolation of Dalhousie from the other common law schools within Canada, but in philosophy, the evidence suggests much less isolation. We know that Dalhousie sent three of the idealist common sense philosophers who developed out of the Lyall tradition to Comell in rapid succession after 1886 -- Jacob Gould Schurman; his student, J.E. Creighton; and colleague

James Seth. The 1920s Dalhousie Dean, D.A. MacRae, had completed an undergraduate degree in classics at Dalhousie and then an M.A. and a Ph.D. in classics at Cornell, where he would surely have known the Lyall disciples. He taught there and at rincet ton'^ (whose President McCosh had written a glowing

58 See Kyer and Bickenbach, op. cit., at 47. 115 introduction for one of Watson's texts) before studying law at Osgoode and retuming to Dalhousie. We know also that Dalhousie continued to train philosophers in the

Scottish hybrid common sense-idealist tradition well into the mid-twentieth century, some of whom taught in the University of Toronto philosophy department where so many law students obtained liberal arts degrees before attending Osgoode bar admissions programme.60

This is an interesting avenue for the further research which could take us beyond Flaherty's "informed speculation" and Pue's assurance that the acadernic study of law was inseparable from the study of philosophy well into the 1880s. For now we can only note that Lyall's idealist philosophy, integrating emotion and rationality, is completely congruent with the Maritimes ethos of legal education which seems quite persistently to have declined to acknowledge any fundamental dichotomy between the practitioner and the academic during al1 the years that the same issue fueiled endless debate in Ontario.

4. Quebec: Pluralities of Mixed Jurisdiction

Although English language legal education in Quebec was obviously centred at

~cGill~',it is helpful to know a little about the background leading up to its

60AIlison H. Johnson, "Cornments In in Philosophv in Canada, op. cit, at 40; he names F.H. Anderson, T.A. Goudge and W.J. McCurdy as the Dalhousie exports to Toronto.

61 I am drawing here on Laskin, op. cit., at 81 and following; on J.E.C. Brierly, "Quebec Legal Education Since 1945: Cultural Paradoxes and Traditional Arnbiguities (1986-7) 10 Dal. L.J. 5; on Stanley B. Frost. 'The Early Days of Law Teaching at McGill" (1985) 9 Dai. L.J. 150; and on Rod A. Macdonald, The 116 establishment. Historically, the British had fully intended to impose anglicized law on

Lower Canada afier 1763, but it soon realized that it needed to placate French

Canadians and the Roman Catholic Church if it was to sustain any territorial daims in the face of the politicai challenges to its authority coming from the American colonies.

The Quebec Act of 1774 confirmed that land grants would continue to be made in accordance with the French systern; amendrnents which had been planned to establish English law as the law of commerce were never implemented, much to the dismay of the Scottish merchants, including James McGill, who complained about the disruptions to trade which resulted from the confusion about applicable laws.

McGill University was founded by Glasgow-born James McGill who, in 1821, had willed both land and money to establish the university. This was an intensely

Scottish institution; according to Campbell, al1 of the early trustees at McGill were aiso ~laswegians~~and many of McGill's students were descendants of the great

Scottish merchant and banking families who had established and controlled the economy of Lower Canada within a predominantly French Canadian culture. As early as 1836, Quebec shortened the articling period from five years to four for those who had graduated from a serninary or college, and the 1849 statute which incorporated the Bar of Lower Canada further reduced articling to three years if the students had studied law in an approved institution.

ln response, an Ecole de Droit was quickly established at College Ste. Marie in

National Law Programme at McGill: Origins, Estabfishrnents, Prospects" (1 990) 13 Dal. L.J. 21 1.

62Campbell, op. cit., Chapter XX at 284. 117 Montreal by Maximilien Bibaud in 1851 which becarne a separate Institut de Lois in

1861, only to close its doors in 1867. In 1847, a group of Montreal merchants visited

McGill and requested that a law professor be appointed to establish a law school where English commercial law would also be taught in English. The McGill law school was established in 1853, but lectures in law were relatively irregular until 1890 when a sufficient endowment was presented by Sir William Macdonald to pay two

professors salaries that were cornpetitive with the incomes they could generate in practice. In 1854, Laval University also established a French language law school at

Quebec City, with a second branch plant operation opening up in Montreal in 1878 which by 1920 was established as the independent University of M~ntreal~~.

Recognizing that Quebec was (and is still) a mixed jurisdiction, with French civil law and English juridical and administrative law, the curriculum at McGill in the

1850s included Justinian's institutes as the source of Roman law, Blackstone's

Commentaries on the Laws of Enqland and the Coutume de Paris. After 1866, the

Civil Code of Lower Canada was accorded preeminence in law students' studies; there was also a cornpanion code of civil procedure, and both were considered to be models of rational organization for use in drafting other legislation.

A lecture style of teaching seems to have been the norm within the law school,

63 See Y. Pratte, The Faculty of Law at Laval University" (1965-66) U.T. L.J. 175. Pratte provides something beyond an account of buildings and personalities in this history, concluding with a statement about the philosophy of Iâw as taught at Laval, which he insists must train the mind and not just the rnemory: rhe student] shoutd be made to realize that law is an everchanging science that is devoid of any rneaning if it is not considered in the light of the social needs which it is expected to express and to direct. 118 but with little application of legal principles to fact situations and little opportunity for student participation as was customary in the Scottish tradition used in the Queen's arts courses. This may have been the result of the systernatic organization of the civil code as an authoritative source demanding less interpretation by students than is required for extrapolation of principle and application of common law precedent.

However, after the codification the study of law in Lower Canada was still considered to be an extraordinarily dificult and even Herculean ta~k~~,because students were required to become familiar with an unprecedented plurality of legal sources: Roman law, the law of the United Kingdorn, the developing Arnerican jurisprudence, the legislation pertaining particularly to Lower Canada and also the Canadian statutes and court decisions which were authoritative at the national level.

Only after 1925 was it necessary to acquire an undergraduate degree before pursuing studies in law; in fact. up to 1948 it was still possible to be called to the bar in Quebec without any university preparation at all. through a lengthy alternative system of indentures (clericature) together with bar admissions exarninations. But very early on, according to Rod Macdonald. McGill had ambitions to establish itself as

Canada's national law school in a strongly academic and theoretical vein, in part because its rnixed jurisdiction ideally positioned it to develop expertise in comparative

Iaw studies.

In marked contrast to the practitioner bias of the Law Society of Upper

%ee David Howes. "The Origin and Dernise of Legal Educaüon in Quebec (Or Hercules bound)" (1989) 38 U.N.B. L.J. 127 at 131. 119 Canada, it was the Quebec bar which actively insisted on the importance of studies in

philosophy as a prerequisite to studies in Iaw. David Howes points out that in 1886

Simeon Pagneulo. then Conseil General du Barreau. wrote a critique of McGill's

Annual Report in which he affirmed the Bar's belief "in the necessity of teaching

philosophy to those who intend to enter the Bar, as law is essentially a science of

reasoningM6=;it is also interesting that this critique is subtitled. "From a French-

Canadian Standpoint" -- a perspective which we will consider briefly below. McGill

principal William Dawson apparently was less enthusiastic about philosophy for law students, although Howes speculates that any reluctance would have been related to

administrative difficulties and also to Dawson's conviction that history and political science and philosophy were so inextricably intewoven and "internai" to law that it was not necessary to tirnetable these subjects separately.

On faculty at McGill at the tirne was John Clark Murray (1836-1917), considered by many to be (along with Watson, at Queen's) one of the great early

Canadian philosophers; Armour and Tripp name Murray as the Canadian philosopher

most worthy of rescue from oblivion? If Watson was Canada's outstanding

"speculative idealist", Murray was the chief proponent in Canada of Scottish common sense. Emigrating to Canada after studying physics at the Universities of Glasgow

and Edinburgh and pursuing further studies in philosophy. psychology and science in

65 S. Pagnuelo, Universities and the Bar: A Criticism of the Annual Report of McGilI, from a French- Canadian Standpoint (Montreal: Gazette Pn'nting Co., 1998) at 2-3, cited by David Howes, "The Origin and Demise of LegaI Education in Quebec (Or Hercules Soundw(1989) 38 UNB LJ 127 at 128 fn. 6.

66Armour and Tripp, op. cit., at 105. 120 France and Germany, Murray also had considerable interest in comparative anthropology and comparative mythology as sources of religious belief. He spent ten years at Queen's after James George, and then after 1882 taught a further forty- five years at McGill. Philosophy was a compulsory subject for al[ arts and science students at McGill (just as it was at Queen's) and like Watson, Murray seems to have had an extraordinary impact on an enormous number of students. We can only speculate that Murray's influence would also have been strong in the philosophy courses taught within the law school when it was still possible to study law without an undergraduate degree.

Sustaining his loyalty to the common sense aspects of Reid, Stewart and

Hamilton -- in part because he found Hume's skeptical ernpiricism rather distasteful -

Murray was also thoroughly familiar with the continental idealists, including Kant and

Hegel. It is an interesting sidelight on Murray's personality that he sought inclusion of minority groups within mainstream social institutions long before this dernocratic ideal was much practised in Protestant-dominated Canada. Like Hutcheson and Hume,

Murray was a strong advocate for the equality of women. He had agitated for the admission of women to Queen's as full students from the time of his arriva1 there in

1871, arguing that women could not be fitted even for dornestic duties by the

"finishing school" mentality of women-only educational institutions, and it took him six years to prevail. Murray renewed his campaign at McGill in 1882 and was successful in opening its doors to women students after only two years. Partly because of his familiarity with Spinoza, Murray was also very interested in Jewish culture and philosophy at a time when there was considerable anti-Semitisrn in Quebec and well- qualified Jews found it difficult to obtain professional employment anywhere in

in 1888 he translated from the German an important autobiography of

Solomon Maimon, a philosopher contemporary with Kant.

Despite a heavy teaching and administrative work load, Murray was as prolific as Watson in his publications. In academic circles, he probably became best known for his systematic but uncritical Outline of Sir William Hamilton's Philoso~hvpublished in 1870 and his own Introduction to Ethics, with its strong emphasis on duty, which was published in 1891. The Ethics proposed a consideration of morality as an evolutionary concept shifting and changing in accordance with changes in society, which is farniliar to us from our consideration of Adam Smith:

the requirements of the moral ideal in any age can be definitely comprehended only when we corne to know how it has been formed, just as the precise meaning of a word is often to be reached only by tracing its history; and even if the obligations of the moral life demand an elevation or modification of the existing ideal, the proposed moral advance can itself be understood only when it is viewed as a continuation of the process through which that ideal was attained .68

Murray's texts in psych~logy~~(which was still considered a branch of philosophy) were written very much in the epistemological and metaphysical tradition of Sir

67 For example, up until 7940, and even though he had distinguished himself in graduate studies in Iaw at Harvard, Bora Laskin was unable to find any work in Toronto other than writing head notes and case comments for the Canadian Bar Review. In that year, he was finally offered a teaching position at the non-professional University of Toronto Law School which had been established by William Kennedy in 1924, and later taught also at Osgoode with Caesar Wright and John Willis. See C. lan Kyer and Jerome E. Bickenbach, The Fiercest Debate (Toronto: University of Toronto Press, 1987) at 310 fn. 19.

68John Clark Murray, Introduction to Ethics (Boston: DeWolfe, Fish & Co., 1891), cited in Irving, Philosophy in Central Canada, op. cit., at 281.

69A Handbook of Psycholoqv (1885). and An Introduction to Psvcholociv (1904). 122 William Hamilton. Like Watson's texts, they were also widely used throughout

Canada and the United States until they were displaced by the more expenrnental studies of the new American school of psychology.

Again like Watson, Murray continued the Scottish tradition of the interdisciplinary amateur. producing a novel and some biographical studies. But however renowned he was as an academic, Murray created his best seller in his study of Scottish music. with its separate chapters on legendary, social, romantic and historical songs and its generous quotations from the best loved ballads. And Murray did not write down in his popular works. The style of the introduction to The Ballads and Sonqs of Scotland is relatively simple and could be read by any person with an interest in the music. but it does present some difficult ideas. Murray engages in cultural anthropology as he attempts to set out the relationship between the national character of the Scottish people and their music:

There is a peculiar difficulty attaching to inquiries concerning the agencies which go to form social character; for every such agency is alternately cause and effect. A certain type of character in a people cannot be due, for example. to the agency of the people's songs alone; for the people's songs are. in the first instance, due to its character. Every manifestation of character is thus at once evidence of the existence of 2 certain tendency, and a contribution to the force of the tendency from which it has spr~ng.~O

He is drawing here on Humean concepts of causation in a rnanner which again parallels Adam Smith's account of the rolling evolution between law and society, but there is a persistent theme of plurality in Murray's work which makes it particularly

- .- M John Clark Murray, The Ballads and Sonss of Scotland (London: MacMillan & Co., 1874). 123 suited to a culture working in a legal tradition of pluralism.

If Murray spent rnost of his life working in Montreal at English-speaking McGill, what other elements were at work in the interrelationship between law and philosophy in Quebec? Obviously, the scope of this study does not permit anything beyond a most cursory mention of the Roman Catholic traditions of scholasticism. Grounded in the philosophy of St. Thomas Aquinas (1225-1 274), scholasticism was sustained in the eighteenth century French-speaking seminaries of Quebec, then at Laval and

University of Montreal. and later outside Quebec at St. Michael's College in the

University of Toronto, at University of Ottawa, at St. Boniface and St. Paul's in the

University of Manitoba and at St. Thomas More College in the University of

~askatchewan.~'The substantial Highland Catholic Scots immigrant group which settled in Prince Edward Island, eastern Nova Scotia and Glengarry would have had some farniliarity with these scholastic doctrines through their religious affiliation.

It could be argued that Thomism, with its focus on the interrelationship between natural and revealed truth. is in some ways more sympathetic to the Scottish

Enlightenment doctrines of moral sentiment and common sense than is the Kantian doctrine of idealized rationality. Reason, for Aquinas as for the Scottish philosophers, began with sense data to provide knowiedge of material existence, and Aquinas also drew heavily on Aristotelian ethics in his consideration of general human morality.

However, it is also true that the Presbyterian custom of the sermon as moral argument encouraged a kind of individual introspection and intellectual engagement

71Rupert C. Lodge, "Comments II" in Philosophy in Canada, op. cit., at 44 and 45. 124 on the part of congregants which was significantly different frorn the Catholic focus on revelation and authority in matters of faith. In the Thomist tradition, the separation of the realms of faith and reason presupposed that faith could not be contradicted by reason, and that any apparent conflict between the two must therefore necessarily signal an error of reason requiring appropriate correcti~n~~,an attitude which would have been hotly debated by Hume but rnuch less so by the heavily theological common sense schoof.

In their account of the development of philosophy within these Catholic- affiliated institutions, Armour and Tripp stress the international focus which resulted from the international structure of the Roman Catholic Church itsetf and made it possible for its scholars, working until the 1960s and later in Latin, to be transferred around the world. There is a very real sense, they think, in which the Catholic- dominated traditions of French-speaking Canada gave rise to a universalisrn in law rnarkedly different from the English cornmon law tradition, perhaps because of the universalist aspirations of the civil code. There was even an expectation on the part of the 1857 Codification Commission, still alive as tate as 1890, that the Quebec civil code might be exported to enlighten al1 of British North American.

However, legal scholar David Howes argues more persuasively that this code was never perceived to be monolithic within Quebec, and that it accomrnodated a kind of "principled eclecticism" 73 which is quite compatible with the plurality we

72 Armour and Tripp, op. cit., at 488.

%ee David Howes, "Frorn Polyjurality to Monojurality: The Transformation of Quebec Law. 1875-1929" (1987) 32 McGilI L.J. 3 523 generally and in particular at 529 and 523. 125 associate with the Scottish Enlightenrnent philosophies. Quebec judges such as Sir

Henri-Elzear Taschereau (1836-1 9 11 ), according to Howes, paid no particular deference to the Quebec Civil Code which he considered only a convenient tool for students and busy practitionerç but never an absolutely controlling authority. Such judges positively enjoyed searching out diverse sources and legal arguments from the plurality of legal sources which constitute the vitality and the originality of Quebec law and the very meaning of legal scholarship. And Taschereau was actively involved in legal education, teaching in the civil programme at University of Ottawa after 1878 and serving as its Dean from 1895 until 1902, when he was appointed to the

Supreme Court.

Howes compares the plurality of sources in the French Canadian civil code to the patchwork of sources apparent in the jurisprudence of Upper Canada, noting that this fundamental similarity is much more apparent than any difference between the two founding systems of Similarly, in Watson and Murray we have seen two

Scottish strands in Canadian philosophy, the speculative idealists derived from the more rational Kantian-hybrid tradition and the analytical empiricists of the cornmon sense school. But again, any dichotomy between them is more apparent than real.

60th Watson and Murray and their followers sustained the characteristic Scottish method of inquiry derived from common sense introspection which was conducive to cross-boundary excursions into neighbouring acadernic disciplines and the integraüon

74Ho~~es, ibid., at 532; Howes refers to Lord Durham's Report of 1839 and to an article by G.B. Baker, "The Reconstitution of Upper Canadian Legal Thought in the Late-Victorian Empire" (1985) 3 Law and Hist, Rev. 219 at 239-40 (discussed at sorne length in Part IV of this paper) in which Baker describes citations from a wide range of sources which can be found in the published reporting senes of old Ontario. 126 of popular with professional concerns. Moreover, both strands were strongly linked with theology and both sustain the historical approach initiated by Sir William

Hamilton.

5. Ontario Again: lronic Modernities

Having suweyed legal education and developments in philosophy in Ontario, the Maritimes and Quebec, it is time to return again to Ontario and to consider a little more fully the history of legal education here7' where the conflict between the practitioner and the academic is thought to have been sharpest. In his paper on common law legal education, Pue does not devote much space to the factual history of the Ontario situation, considering (quite rightly) that plenty had already been written on that topic. However, what 1 want to do is consider how the modernist legal education established by Wright at University of Toronto in fact continued the practitioner bias which he said he deplored within the Law Society, particularly when we look at it in Iight of conternporary developments in philosophy also occurring at

University of Toronto. It is helpful to trace out the historic debate between academic and practitioner-oriented legal education in Ontario in order to understand these developments in relation to their social and intellectual contexts.

Even though Strachan had been unable to make it a centre of academic legal

75 Kyer and Bickenbach, op. cit., at 25. In the account which follows, I am drawing again upon the sources cited above at note 17. See also James A. Bridle, Lee K. Guest, George K. Murray and Sidney I.F. Pringle, The Universih, of Toronto Law School- A Histow 1843-1967 (March, 1967) and Joyce McLennan, "The Story of the Faculty of Law" (1957) 2 Varsity Graduate 2. education. when King's College opened in 1843 and for the next ten years it did offer classes in common and civil law. These were taught occasionally by practitioners and primarily by Profess~rWilliam Hume Blake, who had been trained in Ireland; he was also solicitor to the Law Society, a judge and apparently noted for his philosophical approach to the analysis of cases. However, the Law Society did not encourage Osgoode students to attend, in part because it considered these lectures to be too academic for potential practitioners and in part because it feared losing control of legal education. The university bowed to Law Society pressure and eliminated the position in 1853.76

After 1854, law classes were taught at Trinity College, primarily by Hillyard

Cameron who was also Treasurer of the Law Society. The Law Society did allow its students to attend these lectures for credit, but it had also hired its own permanent lecturers for Osgoode in 1858, which it continued until 1868 when classes were cancelled for financial reasons. Cameron was instrumental in reestablishing lectures ai Osgoode after 1872, but they were again cancelled in 1878 afier Cameron's death, apparently because of the disadvantage they imposed upon students who did not live

in Toronto and because of a strong practitioner bias which insisted that the only

preparation required for the study of law was private study and lengthy articling.

The Toronto students disagreed. Their group, the Osgoode Hall Legal and

Literary Society. petitioned the Law Society to have classes reestablished and

Osgoode began to operate again in 1881. However, there was no long term

76Ibid., at 24-25; see also Christopher Moore, op. cit., at 115. 128 cornmitment to continue with legal education until murmurings from the universities made it clear that they were only too ready to fil1 the gap. Between 1885 and 1888, the Law Society turned down new bids to provide legal education from Western

University (later University of Western Ontario), University of Ottawa and Victoria

University and also a second initiative from Queen's. The most arnbitious (and threaten ing) proposa1 had corne from University of Toronto, where various courses of law had been taught by Cameron's successors over the years and occasional LL.B. degrees conferred by special examination on University of Toronto graduates (which did not. of course, entitle thern to practice) or on lawyers with at least seven years' standing who elected to be tested.

Fearing that a lack of firm leadership and clear action might result in legislative

response and statutory loss of control, the law society commissioned a research tour of American legal education. Osgoode was reorganized under the auspices of

Principal William Reeve (who had been particularly interested in the Harvard model,

already up and running at Dalhousie) and opened its doors on a permanent basis in

1889.

It was just in the nick of time; the provincial government had announced in

1888 a reorganization of the University of Toronto Faculty of Law which was to be

adrninistered through the Department of Political Economy. However, although

various professors were named and lectures offered, the plan did not get off the

ground, perhaps because there was no system of remuneration for the distinguished

guest lecturers. Acadernic law at University of Toronto was a desultory business 129 until 1926, when a new undergraduate course in honours politics and law was reintroduced by William Kennedy. Kennedy, the son of an Irish Presbyterian rninister who emigrated to Canada in 1915, was himself an historian specializing in English

Tudor and Canadian constitutional law but not a lawyer. Reassuringly, neither this programme nor the University of Toronto LL.8. were meant to compete with the Law

Society's mandate; they were quite specifically designed to provide a liberal education in law, and Bora Laçkin was one of the first graduates."

At the same time Laskin was studying academic law at University of Toronto,

Cecil Augustus ("Caesar") Wright would have been pursuing graduate studies in law at Harvard. He had completed a distinguished degree in history, economics and

political science at Western in 1923 and begun his studies at Osgoode that fall. A

new principal, John D. Falconbridge, was introducing the casebook approach to legal studies there for the first time in his contracts class; Falconbridge had been

impressed with it on a research trip to University of Michigan Law School which had,

by then, adopted the Harvard method. It was at Falconbridge's initiative that D.A.

MacRae left Dalhousie and joined the Osgoode faculty in May of the following year, where he too applied the casebook approach to the teaching of evidence. Sidney

Smith, who had also completed graduate studies in law at Harvard and experimented with the casebook method in his classes at Dalhousie, soon followed. This meant that Wright had three innovative teachers at Osgoode, and they al1 wanted hirn to join

T7 See Kyer and Bickenbach, op. cit. at 58-9. See also R.C.B. Risk, "The Many Minds of W.P.M. Kennedy (1997, unpublished) at 14 through 18 for a more detailed account of education in law at University of Toronto during the 2930s. I am indebted to Jim Phillips for providing me with a copy of this paper. 130 them on the Osgoode faculty. But first, they encouraged him first to soak up this modernist and scientific approach to legal education at the source. Wright topped his class when he graduated in 1926 and irnrnediately set off for Harvard with the promise of a teaching job at Osgoode on his return.

At Harvard, Wright studied jurisprudence under Dean Roscoe Pound and torts with Francis Bohlen. As Kyer and Bickenbach point out78,it would be a mistake to assume that Harvard in the 1920s propounded a narrowly scientific approach to legal education. Their account characterizes Pound as profoundly interested in a dynarnic relationship between law and sociology, proposing in his Outline of Lectures on

Jurisprudence an optimistic assessrnent of law as an elernent of social engineering in a manner which encornpassed extralegal elernents of political science and ethics; his approach seems not to have been at odds with that of Adam Smith.

But Wright was not much attracted by Pound's philosophicai abstractions, which were in any case rapidly becoming less fashionable in light of the more cynical interpretations of the legal realist school then evolving at Yale, Columbia, Chicago and Johns Hopkins. In fact, Pound's course was the only class at Harvard in which

Wright received less than an A grade.79 Much more compelling to Wright was the interest-balancing analysis of torts presented by Bohlen in his just-published second edition of Cases on Torts.

Kyer and Bickenbach stress that Bohlen's work was by no rneans a

78 Op. cit., a! 88 and following

79Kyer and Bickenbach, op. cit., at 97. 131 mechanical exercise in rational categorization. In fact, it exemplified Pound's notion of iaw as social engineering, in that Bohlen advocated flexibility in selecting arnong a multiplicity of possible solutions that decision which could best unravel the social problem at the heart of the tort. As they demonstrate, Wright rernained profoundly infiuenced by Bohlen's approach throughout his career as a legal educator; the introduction to his own 1944 casebook on Canadian torts encourages students to look for al1 possibilities and to ignore labels which can obscure the actual complexity of the problem that was before the courts to be de~ided.'~Wright's focus, however, was always on the practical applications of this flexibility "within the framework of existing common law methods and principles" rather than on Pound's extralegal theory of the relationship between law and ~ociety.~'And when Wright returned to Canada, he was faced with almost two decades of frustration and setbacks in his atternpts to reform the Osgoode Hall bar admission courses in accordance with Bohlen's

80See Kyer and Bickenbach, op. cit., at 96, citing Wright's "Introduction to the Law of Torts" (1944) Cambridge L.J. 8 at 238 and Wright's Cases in the Law of Torts (Toronto: Butterworths, 1954 at 9: Frequently the use of legal "labels" to describe the results of a case in which compensation has been ordered obscures the tnie nature of the problem to be investigated for future guidance- Students approaching the study of torts should not be deterred by labels or tags from making a critical examination of the problem presented for solution, or from attempting to discover what they feel to be the tme basis of decision. . . The study and practice of law is concerned with discoverhg al1 possibilities of choice open to a court at a given time, so that the court may choose wisely and with full knowledge of the alternatives- If we conceive of law as dictating a result in every case, we deceive ourselves. . , . The cases in this book should not be read in isolation in order to rnemorize what a given court said or did - the search must always be, why did the court do what it did? might the court within the framework of existing common law method and principies have done something else, and how?

81 For example, see C.A. Wright, "Law and the law schooIsn (1938) 16 Can. Bar Rev. 579 at 581, where he wrote that legal education should provide "training as a person capable of perceiving and understanding modem social problems and assisting in their soIutions"; Wright recommends an exclusively intralegal comparative approach, looking at "what other judges thoughtl', and reiterated (at 601) that law and IegaI research should be taught in the university, pointing out that it would then have been unthinkable to teach medicine and medical research without structured academic studies. 132 approach.

During this whole period. the most distinguished philosopher at University of

Toronto was George S. Brett (1874-1944). Brett was not Scots. Trained in classics and philosophy at Oxford and particularly steeped in Aristotle, he had joined the lndian Educational Service and taught there for four years before coming to Trinity

College at University of Toronto in 1908. Very rapidly, Brett came to dominate the teaching of philosophy throughout the university; as an administrator, he shaped the curriculum, he chose the staff and he had an enormous influence on studentd2

Brett's own academic interests were in the history of philosophy generally, and his own renown was earned as an historian of psycho~ogy.~~He was considered to have established the realist school in Canada as the "first indigenous philosophical movernent in

Philosophical realism is not the sarne thing as legal realism; Brett posits a fusion of the subject and the object in the act of cognition which necessitated close attention to the reality of things in the world. However, also essential to Brett's philosophy was a characteristic "dynamic pluralism" in which he asserted that the categories of these things having been observed could only be defined in relation to each otheP5; Charles Hendel credits Brett's realism. which was enormously

82Arrnour and Trott, op cii., at 432.

83 Brett published a three volume Histow of Psvcholoqv between 1912 and 1921

84 Irving, "One Hundred Years of Canadian Philosophy" op. cit., at 18.

85 See Iwing, "One Hundred Years of Canadian Philosophy" op cit, at 12-13, and also Amour and Trott, op cit. at 430-449, for a much fuller account of Brett's philosophy. 133 influential on a whole generation of philosophers across Canada, with initiating the reintegration of the historical/empirical and the moral/social strands of philosophy that we have traced back through the influence of Scottish Enlightenment philosophy on

Canada?

What is particularly significant to an understanding of the development of legal education in Ontario was the way in which Brett applied this theory of dynamic pluralism within the university itself. His reputation was such among the other faculty members that the schools of engineering and medicine and law at University of

Toronto al1 sought him out to design curricula in philosophy suitable to their particular disciplines; Hendel says, in particular. that every candidate for a degree in law at

University of Toronto had to graduate from specified undergraduate courses in phil~sophy.~~

It is not possible to determine by looking at the calendars for the University of

Toronto law school during this era exactly what the detailed content of those Brett- designed courses might have been. but it is clear enough that a minimum of three philosophy courses were required for the combined five-year B.A.-L1.B.: in second year, students studied philosophy before 1500; in third year, philosophy between

1500 and 1800, "political science from Machiavelli to Bacon"; and in fourth year, philosophy after 1800 with a focus on "theories of human nature and social

86~ende1."The Character of Philosophy in Canada". op. cit.

87 Ibid. at 37. 134 relations"-88

And it is absolutely clear that in 1949 these philosophy courses were abruptly scrapped. Wright, by then Dean at Osgoode, had run out of patience. Brett was dead; Kennedy was due to retire at University of Toronto Faculty of Law, and Wright realized that his programme of negotiations and nonconfrontational manoeuvrings through various cornmittees by which he had hoped to achieve consent for a solidly

modernist programme at Osgoode had been blocked again. Although some of the

benchers of the Law Society would have permitted the radical reform he wanted, the majority approved only minor modification of the articling req~irements.~~Wright resigned and within six weeks established a new Faculty of Law, taking Bora Laskin and John Willis, both then on the faculty at Osgoode, with hirn.

The 1949-50 calendar established that the purpose of this new programme was to provide "a thorough liberal and professional education" in which the students would develop "legal reasoning and a scientific habit of thought" by analyzing

"problems of law that are encountered in a modern so~iety"~~,language which is very rerniniscent of Pound. Students in Wright's new Faculty of Law studied contracts, torts, property, remedies and criminal agency in first year; constitutional law, real estate, commercial law, administrative law, civil procedures and family law in

88 UTA, University of Toronto Academic Divisions Calendars 1949-50, 1950-51 (Part Il), P78-0024.(22), (24); students who were part-way through this programme were pennitted to cornplete it.

8QSee Christopher Moore, The Law Societv of Upper Canada and Ontario's Lawvers -1797-1997 (Toronto: University of Toronto Press, 1997) at 231. See also C. lan Kyer, "Legal education, Contribution of Harvard Law School" (1983). 61 Can Bar Rev. 4 924 and John D. Amup, "The 1957 Breakthrough, reform of legal education in Ontario" (1982) 16 Law Society Gazette 2 180.

QoIbid. 135 second year; tax, conflicts, wills and trusts, labour, evidence, trial procedure and jurisprudence in third year, and then subrnitted to articling and to bar admissions examinations administered by the Law Society. There was no more philosophy or history or political science.

After the departure of al1 their best instructors, Osgoode Hall continued to offer an alternative four-year legal education with students permitted direct entry into third year if they had completed a bacheior's degree. but the handwriting was on the wall.

In 1957, a deal was brokered between John Arnup for the Law Society and Alex

Corry from Queen's as representative of the Ontario universiües; academic legal education would be left to the university law schools, articles would follow, and students would be required in addition to complete a Law Society controlled bar admission course before their call. There followed a rapid development of university law schools at Ottawa (which already had a civil law programme), Queen's, Western and Windsor. Finally, in 1968, the Osgoode Hall Law School was formally transferred to York University and the Law Society educational function reduced to its residual role as provider of practical training and bar examinations on~y.~'The modernist takeover of academic legal education as a university science in Ontario was compiete.

At a 1950 symposium on Canadian philosophy -- the first year Wright's new law school was in operation -- Irving traced the interest in historical studies of philosophy in Canada back to Watson. He stated that "al1 of the best philosophical

81 Moore, op. cit. at 259 and 263. 136 scholarship in Canada has been devoted to historical studiesnQ2and speculated that the primary focus of Canadian philosophy as it was then developing would be intellectual history and social phi~osophy.~~Charles Hendel, in his paper delivered at the same symposium, considers the very lack of self-consciousness or urgency among Canadian philosophers about creating an identifiably Canadian brand of philosophy to be one of their most admirable qualities; Canadians, he says "simply will not travel in shoa~s".~~But Hendel usefully points out that the intellectual historians have tended to align themselves with those academics in other disciplines primarily preoccupied with facts -- looking to the ernpiricism of modem anthropology, psychology, economics and political science. On the other hand the social philosophers, says Hendel, inherited the traditions of moral philosophy which concernç itself with individual values and with the improvement of society more generally. These issues we know were originally integral to Adam Smith's political and economic science or to Hamilton's psychology, until the rushing currents of modernism swept them out of the mainstream into the quiet backwaters of aesthetics and ethics and the kind of well meaning but ineffectual sociology we associate with the "helping professions".

82 Irving, "One Hundred Years of Canadian Philosophy" in Philosophv in Canada, op. cit. at 18: Irving provides an extensive list of works by Canadian historical phifosophers, beginning with Watson and including A.Caldwell (Schapenauer), G.S. Brett (psychology), R.C. Lodge (Plato), H.L. Stewart (Nietzche), C.W.Hendel (Rousseau), F.H. Anderson (Plato and Bacon), T.A. Goudge (Pierce) and A.H. Johnson (Whitehead).

83 Irving, "One Hundred Years of Canadian Philosophy", in Philosophv in Canada, op cit. at 6. w C.W. Hendel, "The Character of Philosophy in Canada", in Philosophv in Canada, op. cit. at 27 and 32. 137 Hendel calls out for an approach to philosophy which could reachieve the

"ancient integrations" of these two kinds of knowledge. the rational and the emotional, the empirical and the idealistic, but without "grandiose theory". He is looking for something practicai. something implicitly ernbodied within social institutions and social orders as an expression of aggregated opinion about what constitutes appropriate ways to live individually and collectively , something produced by many anonymous

"weavers" as the "combined result of many different agencies in the life of the people"g5rather than something imposed upon them. It is a curiously tentative and moving conclusion to a very interesting piece, and I think, prophetic of the postmodern society Canada has indeed become. And despite his thesis that culture is produced by a multiplicity of "weavers" working in anonyrnity, Charles Hendel does single out Brett for pariicular praise as a Canadian philosopher who tried to structure social institutions in such a way that these "ancient integrations" of reason and emotion could be reachieved .

We have already noted that Wright had little interest in Pound's philosophizing.

It is still a curious thing that Wright, who condernned those benchers who wanted a purely practitioner-focused legal education as philistines and himself laboured for so many years to establish legal education as an academic discipline, was himself too pragrnatic to retain the Brett-designed philosophy courses as part of the new

University of Toronto Faculty of Law curricuium. For Wright, to study philosophy was to remain mired in the genteel Victorian miasma of the Kennedy era; it was not

95 Ibid., at 37-39. 138 modemist, and it had to go. And yet, ironically. R.C.B. Risk's account of the Kennedy years at University of Toronto establishes very clearly that Kennedy was both thoroughly familiar with and cornmitted to Pound's sociological approach to law, and that he was aiready teaching law through a case study discussion method.

Moreover, Kennedy's own very extensive scholarship in history and in law demonstrate a lively multiplicity of interests and the interdisciplinary approach which we have come to associate both with Scottish Enlightenment thought and postmoderni~rn.~~Wright did not see any of this; he put an end to the study of law in an integated liberal arts context and, some believe, destroyed the Kennedy concept of legal ed~cation.'~

But through an examination of modernism and its effect on the history of legal theory, I will argue that elements of the Scottish Enlightenrnent philosophies which we have traced in relation to developments in legal education in Canada are not merely old-fashioned or Victorian and that Wright was not successful in eliminating them. Charles Taylor says that the Aristotelian modes of moral thought are ineradicable from the human personality, and it is my contention that this Aristotelian- derived Scottish Enlightenment thought is so deeply engrained in the Canadian experience that it is similarly ineradicable, reernerging today in the postmodern

BB~isk,"The Many Minds of W.P.M. Kennedy", op. cit.; Risk writes that he has read evetything Kennedy ever wrote, some of it more than once, and that what he finds remarkable about Kennedy's scholarship is its simultaneous breadth of interest and its consistency of focus on the sociology of law, by which he means the mutually modifying relationship between the individual and the state as it is structured by law.

BTSee Brïdle et al, op. cit., at 64. However, Risk points out, op. cit. at 18, that Kennedy would have been pleased by the decision of the 1996 Curriculum Cornmittee at University of Toronto to reform curriculum in accordance with the Kennedyesque principle that the law school should offer a ngorous liberal education in law. 139 multiplicities of our legal institutions, the jurisprudence surrounding our postmodem

Charter, and in Our postmodern legal theory.

What was least admirable about the application of Scottish Enlightenment doctrines in nineteenth century Canadian society generally is their misuse, from time to time, as a tool of social engineering -- a common sense harnessed to cornplacent piety and hierarchy that was more concerned with superficial convention and social class than with the principled propriety Adam Smith described as a moral virtue. That was the kind of social engineering which Wright rebelled against ai Osgoode. But at its best, typified in the work of David Hume and duplicated in the accounts of the lives of James Beaven and George Paxton Young and Clark Murray and George

Brett and William Kennedy, we can see the characteristically Canadian "integrity of conscience" -- Hugh Hood's term -- which he considered to be the compromise at the core of Canada as a "country of moral imagination"'*.

88 Hugh Hood, "Moral Imagination: Canadian Thing" in The Govemor's Bridne is Closed (Toronto, 1973) at 100-102, cited in McKillop, A Disciplined Intelliqence, op. cit., at 232 and following. 140 PART IV

BRIDGINGS: RECONSTRUCTlNG THE HISTORY OF LEGAL THEORY

1. The Effects of Modernism on Legal History

It is my thesis that the particular kind of postmodernism which is now evolving in Canadian society and in Canadian iegal institutions and structures and theory represents a reemergence of certain elements traceable (in part) back to the Scottish- infiuenced philosophies which dominated Our early intellectual history. Now that we have speculated in some detail about the relationship between the history of

Canadian legal education and the history of Canadian cornmon sense philosophy, clearly the logical next step, if it were possible, would be to trace out this evolution and to demonstrate a neat and linear progression from the comrnon sense philosophy of 1850 to the postrnodernisms of the present. However, as we have already seen, it is because there has been almost nothing written about the interrelationship between

Canadian philosophy or Canadian intellectual history and Canadian legal education, and also because so little contemporary documentation of those connections exists, that we were reduced to speculation about the connection between legal education and philosophy based on what evidence can be cornpiled. It will not be surprising after that exercise, then, to discover that there has been equally little scholarship detailing the history of legal theory in canada.'

We have noted that the transplant of American-style modernism into Canadian legal institutions is actually traceable back to the earliest beginnings of Dalhousie Law

School, even though legal histories usually credit Caesar Wright with firmly establishing Canadian legal modernism after 1949 at the University of Toronto and assume this was the source from which modernism then spread through legal education and legal structures west across Canada. We have also seen that Wright himself was less interested in Pound's sociological theories than in Bohlen's formal and scientific analysis of tort principles, and that under his influence the study of the distinctive Canadian common sense philosophies then dominating Canadian universities rapidly faded as an element of academic legal education.

Legal formalism is a theory grounded in Platonic and Kantian doctrines of rationality which preceded modernism but which gained strength from the modernist establishment of the study of law as a science; it is still a very powerful theory today, and one of its rnost persuasive defenders is Professor Ernest Weinrib of University of

1Peter D. Maddaugh's pioneering 1970 work A Biblioaraphv of Canadian Lecial Histow (supra, Part III fn. il)has not been updated in any systematic manner; it does not include any separate listing of studies in the history of legal theory. W. Wesley Pue has probably done the most to remedy this dearth of contemporary bibliography of Iegal history through the copiously bibliographic footnotes provided within several of his scholariy articles; see, for example, fn. 144 and following to "In Pursuit of Better Myth", op. cit Also extrernely useful are the endnotes provided to the various articles included in Canadian Perspectives on Law & Society, Issues in Lesal History eds. W. Wesley Pue and Barry Wright, (Ottawa: Carleton Library Series, 1995), especially Bany Wright, "An Introduction to Canadian Law In History". Pue was the Director of the Canadian Legal History Project at the University of Manitoba which produced a series of weil-annotated Working Papers written by Canadian legal historians on vanous topics beginning in 1992. The Essays in the History of Canadian Law series (supra., Part III fn. 9) is another invaluable source of bibliographic materials But, for reasons which will become clearer (infra) even these scattered bibliographic sources do not help much to fiIl the gap in the history of Canadian legal theory. Toronto Law ~chool?Modernism assumes that lawyer-scholars or judges can dissect case law to discover fundamental legal principles applicable to any fact situation which may present itself in order to derive objectiveiy correct legai judgments. But embedded in this modernist agenda is a powemil norm which asserts that lawyers ought to engage in this activity because only through such formal and objective analysis can Iaw be rationalized and justice reali~ed.~Pierre schlag4

2The terms "legal formalism" and "modemism" tend to be used interchangeably, but it is helpful to distinguish them historically. Weinrib combines formalism (the notion that the rational structure of law is necessarily coherent and unified) with elements of natural law (the notion, shared by the Scottish Enlightenment philosophers we have surveyed, that law has some necessary moral content such that an evil law cannot be what we mean by 'lawV)- See E. Weinrib, "Legal Fonalism: On the Imminent Rationality of Law" (1988), 97 Yale L.J. 946. Weinrib's focus on the fomalist elements of corrective justice and distributive justice derives, as he acknowledges. from the Aristotelian concepts which we have considered earlier; what is not clear is why Weinrib fails to take into account Aristotle's insistence that both of these elements are only elements of the complete and contextual justice which integrates philosophic and practical wisdom in action through phronesis (supra, Part Il, notes 34 to 36 and associated text). The terni "modernismn reflects the notion that the coherence and unity of law make it amenable to rational study as a science, and this is the idea which spread from Harvard under Dean Langdell in the 1870s throughout North Amencan law schools but was not firmly established in Canada until it was adopted at University of Toronto in 4949. Legal positivism began to nudge out fomalism (with which it shares many affinities) as the mainstream approach to legal analysis during the 1950s. Positivism acknowledges in a limited way the plurality of law that we associate with Critical Legal Studies and postmodemism in so far as the positivists beiieve law may embody goals extrïnsic :O itself, such as the wealth maximization of the law and economics school; (See Richard Posner, Economic Analvsis of Law (Boston: Little Brown, 1972)). But cleariy the positivists subscribe to a much more consewative political agenda than CLS. and postrnodemisms are politically agnostic. Positivists do, however, distinguish the law which exists and which the judge must apply from the Iaw that ought to exist. Hobbes represents the origins of legal positivism; J.L, Austin and H.L.A. Hart have cam'ed the doctrine forward; Owen Fiss and Ronald Dworkin (with his fomalist ideal of law as a "seamless web") are probably the preeminent scholars in this field now.

3See Margaret J. Radin, "Reconsidering the Rule of Lawn (1989) 69 B.U. L. Rev. 781 at 792 for a neat summary of modemist assumptions about law: 1. law consists of rules; 2. rules are pnor to particular cases, more general than particular cases, and applied to particular cases; 3. law is instrumental (the rules are applied to achieve ends); 4. there is a radical separation between govemment and citizens (there are rule- givers and appliers, versus rule-takers and cornpliers); 5. the person is a rational chooser ordering her affairs instmmentally. Cited by Francis J. Mootz lil in "1s the Rule of Law Possible in a Postrnodem World?" (1993) 68 Washington L. Rev. 249 at 249 fn. 2.

4~ierreSchlag, "The Problem of the Subject", op. cit., at 1634 and following. 143 provides an historical account of the evolution of formalism in law as a science at

Harvard under Dean Langdell in the 1870s and the generally close relation between legal academics and judges characteristic of that tradition. As he points out, it is ironic that at the very same time that pure Kantian rationality was elevated to a highest good in the interests of the neutrality and universality fundamental to notions of moral agency and justice, the liberal ideal of the individual which it continued to valorize was necessarily and simultaneously displaced. Law itself had become the real subject of law, just as for Kant pure rationality became the real subject of rnorality.

In the context of American legal history out of which this tradition of legal modernism arises, Joan C. Williams has described the association between modernism (which established the study of law as a rationally-driven science) and the reluctance of early modernist legal historians to explore the history of legal theory.

For these modernists, theory had become old-fashioned and dismissable, black letter doctrine, a sort of crutch employed by lawyers not clever enough to engage in the intellectual and moral rigours of the Langdellian case study method. For example, the American legal historian Robert Gordon (who was so admired by David Flaherty and R.C.B. Risk for his introduction of the pluralist historiography approach and for his interest in the elements of law "outside the box") considered it inconceivable that anyone could be interested in the history of legal doctrine -- and for a time, that was ail that legal theory was thought to offer.

Accordingly, says Williams. rnodernist legal historians paid very little attention 144 to legal theory, deeming it to be a "dowdy backwaters of 'lawyer's legal history"'?

As a result of the modernist objectivist ethic which assumes that scientific analysis is necessarily and inextricably entwined with the neutrality and universality of justice, together with the general confusion of theory with doctrine, "most legal historians appear to go about the business of interpreting the past undisturbed by theoretical question^".^

2. Theories of Legal ldeology

Canadian legal historian Graham Parker made much the same observation in an amusing and somewhat irreverent historical survey of legal history compiled in

1974, in which he confessed with mock hurnility:

Before embarking on this essay, I read many admirable books on the philosophy of history and historiography. I cannot boast that I am much the wiser. . . I am irnpressed, however, by my abysmal ignorance of the ideas and social forces which must have shaped the law but which escaped my notice during years of legal education. . . . Legal history lacks general history and therefore has no theory or traditions. . . Law schools ignore current history because law is taught within the narrow confines of legal ide~logy.~

The conceptual difference between doctrine and ideology is, of course, that

'~oanC. Williams, in "Culture and Certaintyn. op. cit., at 715. citing Robert Gordon generally in "Legal Scholarship" (1981) 90 Yale L.J. 1017 and specifically in "Critical Legal Histories" (1984) 36 Stan. L.R. 57; the terni "lawyer's legal histones" is credited by Williams to William Nelson in W. Nelson and J. Reid, The Literature of American LeqaI Histow (1985) at 235.

'%Villiams,ibid., at 714.

'~rahamParker, "The Masochism of the Legal Historiann (1974) 24 U.T. L.J. 279 at 300 and 306. Professor Parker was a well-respected legal historian at Osgoode HaIl Law School at York University for many years. 145 doctrine is applied pedantically with rigid rejection of any contingent circurnstances, whereas ideology (theoretically, at least) is concerned with the science of ideas and meant to encourage more visionary speculation.8 But that legal ideology has been particularly constrained by the doctrine of law-as-science is well illustrated in Barry

Wright's study, "The ldeological Dimensions of Law in Upper Canada", in which he writes:

An ideology is a frarnework of thought in which individuals and groups interpret their conflicts and plan their actions. . . . In order for the legal system to be effective it must engage in an ideological function to do [sic] the existing social arrangements with legitirnacy - to ensure not oniy that the status quo appears just, but that it appears rational and inevitable as well.'

Wright describes the domination of Diceyian constitutional traditions in early nineteenth century Ontario, which he argues were intended to sustain a separation of law from politics. It is his view, and he presents it very persuasively, that the futility of this effort is particularly well-illustrated in historical accounts of the 1814 and 1838 treason trials. Treason exists only in political contexts, and the "ideological function" of the court was to legitimate rnembers of the elite Family Compact, including Chief

Justice John Beverley Robinson who charged the jury at the 1838 trial. The intended

"ideological effect" of formalism was to sustain a social consensus more stable than the horrifying upheavals revolutionizing society south of the border.

What is particularly interesting about Wright's paper is its substantial

8See Oxford Concise English Dictionary.

0J.B. Wright, ''The ldeological Dimensions of Law in Upper Canada: The Treason Trials of 1814 and 1838" in Vol. 1, Papers Presented at the Canadian Law in History Conference (Carieton University, 1987) at 373. 146 conclusion, 7oward a More General Theory of ldeology and Law", in which he draws on theories of economics, political science and sociology to posit a new concept of multiple legal ideologies in flux. This concept does not assume consensus but accommodates changes in response to changing challenges confronted by legal authority as those challenges arise within a s~ciety.'~He has in mind a kind of middle path which is "sceptical" of the CLS or legal realiçt view of law as a merely

"repressive mechanism" and equally sceptical of the modernist or fomalist perspective of law as "unproblernatic social consensus"." All of this is very congruent with Adam Smith's notion of law as rolling consensus and with its

Aristotelian origins in the value of moderation; but although Wright recognizes that

"the influences on Upper Canadian law were cornplex [and that] some were historical remnants of intellectual outl~ok"'~,the connection with Scottish Enlightenment philosophy is not one which he makes here.

In a manner which helpfully illuminates Wright's tentative definitions of legal ideology, Louis Knafla and Susan Binnie have written at some length about the theoretical development of interrelationships between legal culture and legal ideology as both have evolved out of legal pluralism. Working from the French concept of

"mentalite" (defined as the mental structures of cultural history) they set out as a

10 Ibid., at 490-1. Wright is drawing here upon ideas developed by Max Weber in Economy and Socie& (Berkeley, 1978); by A. Hunt in "The ldeology of Law: Advances and Problerns in Recent Applications of the Concept of ldeology to the Analysis of Lawn (1985) 19 Law and Society Rev. il; and F. Hirst, On Law and IdeoIogy (London, 1979).

11Ibid., at 492

12 Ibid., at 502. 147 premise of legal pluralism that "al1 activlies or determinations (human or institutional) stem from mental structures (mentalifies) and that the task of the historian is to 'read' the comrnunity's mind, from its 'texts', for the purposes of perceiving what it is, what it means, and how it works."13

An attempt to recreate what was. historically, a particular community's state of mind evokes a subtie and ephemeral notion of legal history, a history of social atmosphere which can include those "legal ways of thinking which may be as important as formal written law"14, but which is quite different from the familiar instrumentalist and economics-influenced histories of cause-and-effect with which we are much more familiar. And Knafia and Binnie demonstrate the contributions of

"ideological state apparatuses" -- specifying in particular the cultural atmosphere of schools and churches and universities and other government institutions, as we have been considering them in relation to Scottish Enlightenment thought -- to a concept of ideology as social str~cture.'~

They see legal pluralism in this sense as a "useful concept" which encourages legal academics to look outside "the traditional confines of their discipline" and to consider law as a "dynarnic institution, one whose rules and societal processes are in

13see Louis A. Knafla and Susan W.S. Binnie, "Beyond the State: Law and Legal Pluralism in the Making of Modem Societies", in Law, Societv and the State eds. Louis A. Knafla and Susan W.S. Binnie (Toronto: University of Toronto Press, 1995) 3 at Il.Knafla and Binnie draw on both English cultural theonsts and French structuralists in developing this approach; their copious footnotes include references to Raymond Williams, E.P. Thompson, Stuart Hall, Roger Chartier, Robert Damton, Francois Furet, Pierre Bourdieu, Richard Nice, and Michel Foucault in this section of their paper.

14 Ibid., at 12.

?bey acknowledge here their debt to Italian theorist Antonio Gramsci. daily practice, constantly challenged, and always in the process of being refined and created".I6 But it is also clear enough that Knafla and Binnie are not prescribing this pluralist legal history of cultural ephemera or preferring it to more traditional approaches; they attach no normative weight to this approach. They are simply describing pluralisrn's evolution and suggesting how pluralisrn can assist in the understanding of law's "double role", expanding outside the tradition which sees law as an idealized force contributing to social stability to a consideration of the equally important deof law "as am expression of the customs, niles and regulations of its cornmunities'1.'7

The work of Wright and of Knafla and Binnie is consistent with the interdisciplinary pragmatism advocated by Joan Williams, but she goes beyond thern to recognize that the shifting reconfigurations of social consensus and

16 Ibid., at 13.

17 Ibid., at 29. It is interesting that, although Knafla and Binnie here provide what is at the least a very sympathetic account of this quintessentially ephemeral rnovement, Binnie has twice written even more extensively on Max Weber's sociological analysis of law and capitalism in a way which clearly indicates her rejection of his theory as a paradigm for pluralism in legal history: see Susan W. S. Binnie, "Max Weber on Law and Capitalism" in Papes Presented at the Canadian Law in Histow Conference (Carleton University Press, 1987) and "Some Reflections on the 'New' Legal History in Relation to Weber's Sociology of Law" in Law & Society, Issues in Lecial Histow eds. W. Wesley Pue and Barry Wright (Carleton University Press, 1995) at 29. And yet, Weber's theory might be (and has been) considered foundational to such pluralisrn. In The Protestant Ethic and the SpirÏt of Capitalism (New York: Scribners, 1958), Weber developed a theory of "elective affinitiesn among three loosely-associated historical developrnents: the rise of ideology relating to capitalist economics; the transformation of Protestantism as a religion as it becarne increasingly associated with commercial improvements; and the contribution of Protestant business men to the creation of capital. Weber was not interested in direct cause-and-effect relationships arnong these three phenomena, and in fact (as Binnie explains rnost succinctly in "Reflections" at 33)' Weber considered the process of rationakation which determined such causal relationships to be an artifice imposed by men on an essentially chaotic and disordered world. For Weber, capitalism required only a substantive (and not necessarily a formal) rationality; nevertheless, what Binnie considers to be lacking in Weber is his failure to create any theoretical understanding of the state or of capitalism as dynamic and changing political forces. stance "a new way of melding legal history with modemism. one that involves a

blurring of the genres of legal, social and intellectual history and political

phi~osophy".'~This is an attitude which I explore in the next section of this paper at sorne length, tracing out its developrnent in contemporary moral and legal philosophy outside the discipline of legal history. I argue that it is a fundamentally postmodern

stance which is recognizably in a process of realization within Canada and

particularly well articulated by Mark Kingwell in his recently published, highly

Aristotelian exposition of the contemporary Canadian cornmunity rnir~d.'~Although l want to postpone for now consideration of Kingwell's contribution to the development

of a postrnodern ethic, his insights on ideology (while not specific to legal ideology

and not completely separable from his ethics) can most usefully be included here.

Kingwell would agree with Wright's provisional identification of ideology with a "rniddle

path" and Kingwell's analysis helps us better understand what Wright identifies as the functions and effects of ideology and their relationship to liberalism and modernity.

Thinking of ideology as a rniddle path recognizes that people are not "sirnply

cultural dopes who are moved by social and political forces beyond their control or cornprehension". On the other hand, it also acknowledges the truth - self-evident to

any attentive observer - that people are not capable of sustaining the purely rational

18 Ibid., at 721.

10 Mark Kingwell, Better Livinq, ln Pursuit of Happiness from Plato to Prozac (Toronto: Penguin Books Limited, 1998). See also Mark Kingwell, Dreams of Millennium: Report from a Culture on the Brink (Toronto: Viking. 1996). 150 decision making central to Kantian or Posnerian accounts of human behavi0ur.2~

(For ethics, of course, the more interesting question is whether or not we should attempt to do so even in the face of this inherent limitation and, if so, how; the

Scottish Enlightenment philosophers consider sentiment to be the fundamental engine of morality and reflective rationality to be the best means of sustaining moral sentiment-)

Kingwell distinguishes carefully among the descriptive, the pejorative and the critical definitions of ideology; ideology is not just a body of political opinion which we can choose to dismiss if we do not agree with it, but rather the basic set of assumptions about everyday life which we have bought into that "saturates everyday discourse in the form of cornmon sense". ldeology is most robust when it remains beneath the level of consciousness even though still in full view, because this is the position in which it best disguises itself as an immutable "fact" of human nature or social cornmunity; we resign ourselves to the way things are, because we are encouraged to believe that if they could be otherwise, they would be otherwise. The condition of unconsciousness protects ideology frorn the rational analysis which would compel its proponents to concede their ideology to be a political structure which perpetuates their own interestsm2'

However, it is generally not necessary to seek to protect ideology by invoking

20 Better Living, op. cit., at 172.

21 Kingwell acknowledges that he is here developing ideas den'ved in part from Dick Hebdige, Subculture: 71ie Meaninci of Stvle (London: Routledge, 1979) at 11; Richard Geuss, The ldea of a Critical Theow (Cambridge: Cambridge University Press); and Stuart Hall, "Culture, Media and the 'IdeoIogical Effect'" in Mass Communication and Society, eds. J. Curran et al., (London: Arnold, 1977). 151 communal unconsciousness as a deliberate policy. ldeology is naturally impervious to challenge because any such analysis would require a rationality well beyond the

limited capacity we have to make conscious and to examine our own assurnptions -

a capacity which, furthermore, we are capable of exercising only interrnittently; in this

sense, ideology has affinities with Stanley Fish's concept of being situated in our own

universalist beliefs." And modernist ideology is particularly persistent and inirnical to the more nuanced and multiple ethical values with which we would at least sometimes seek to dis place it because a freely exercised individuated rationality is the linch pin of modernist concepts of human identity even for those willing to concede that such rationality is only rarely achievable. That is precisely what makes

it literaily "unthinkable" and "unimaginable" to render visible modernist ideology as the political construct it is; that to be human is to think and choose is so much a

matter of modernist common sense that to deny our ability to think and choose is to deny our very humanity, which we cannot bear to do and will not be able to do -- at

least until we reach some new consensus for redefining what we mean by human

identity.

As Kingwell points out, the result of modernism is a '"fracturing of ethical

experience", a fracturing which liberalism, "the dominant political theory of the modern

age", was invented to valorize by permitting and indeed enjoining each to pursue his

own happiness. The irony is evident and irresistible. On the one hand, our purported

capacity for unconstrained rational choice justifies the iiberai individual in pursuing his

22 Supra, Introduction note 23. own individuated freedom and correspondingly requires the liberal individual to ta ke responsibility for the results of those choices; "liberalisrn, individualism and modernity

i are intimately linked" as '"three faces of the same pr~ject'"~.But at the same time, it is the inherently Iirnited nature of this rational capacity which makes it impossible to challenge liberalism, to see it clearly as poliücal ideology.

To displace the ideology of liberal modernity (which, in the context of law, makes it unthinkable or unirnaginable to conceive of legal intentionality or legal responsibility except in liberal and individual terms) postmodernity would have to establish itself as an unconscious competing ideology, in full view but so thoroughly endorsed by cornmon sense as to be politically invisible. And this is precisely the politicized and adversarial dichotomizing that postrnodernisrn resists, although Charter jurisprudence rnay, in fact, be moving Our community rnind in that direction.

We are only beginning to realize that invoking science as the justification for a modernism grounded in the rational autonomy of liberal humanism and the individuated legal subject does not elevate modernism beyond the level of doctrine which the modernists themselves rejected. Modernist doctrine still governs the legal ideology in which we are enmeshed and constrains our search for alternate theories capable of generating more subtle and more satisfying moral significances. An exploration of the relationship between modernity and postrnodernity and a fuller

23 Ibid., at 334-5. Even (and perhaps especially) arnong Canadian conservatives who believe it is possibIe to specify the Good with considerable precision in accordance with the Platonic and Kantian tradition of rationality, liberal ideology is increasingly being rejected for its failure to balance rights with responsibilities; see, for example, After Liberalism: Essavs in Search of Freedom, Virtue, and Order ed. William D. Gairdner (Toronto: Stoddart Publishing Co., 1998). 153 understanding of what we mean by postmodernism as a cultural phenornenon are both so central to any awareness of emergent postmodemism as a legal ideology that

1 will explore these ideas more fully in the introductory sections of the next chapter.

Viewed from Kingwell's perspective, that rnodernity qualifies as a legal ideology is confirrned by the very absence of a legal history of the theory of modernity. In fact,

Maddaugh's bibliography makes it clear that there were very few attempts at

Canadian legal history before 1870, and that the vast majority of historical accounts were written after 1950. This means that the very point at which various kinds of

Canadian legal history began to be written was the point at which the nineteenth century formalist ethos (whichjf Williams is right, dismisses the history of theory as rnere history of doctrine) began to become dominant, only to be reinforced by the scientific rnodernist ethos from the mid-twentieth century on. It is not surprising, then, that we do not have readily available conternporary Canadian legal histories of theory. Only beginning in the 1970s did some Canadian legal historians begin to experiment with various "reconstructive" projects in which - generally as an introduction or a conclusion to more specific analysis within some narrower topic area of legal history -- they rnay extrapolate from case law and from other extralegal sources to speculate briefly about the legal theory which must have been current during the era under discu~sion.~~

2%frightJs work. although interesting and usefd in itself, is not a strong example of this new genre (if we can consider it to be one) because he is primarily interested in constructing theory to illuminate historical events retrospectively rather than in reconstmcting theoretical stances which were part of the intellectual environment of the era. Parker's study is a survey of the history of legal history which notes the dearth of history of legal theory, but does not attempt to reconstmct it 3. Speculation and Risk

"Speculation is needed", wrote the dean of Canadian legal historians, R.C.B.

Risk, in his 1973 "Prospectus for Canadian Legal ~istory"~~in which he set out various directions that research in legal history ought to take if it was to avoid limiting itself to mere description of conflicts, courts and doctrines. Risk introduces this paper, which segues into an overview of law and economy in the mid-nineteenth century, with a list of twelve appropriate approaches or topic areas suitable for legal historians to explore. He includes, for example, "The Nation: Unity and Diversity" and '7he Influence of England, the United States and France", but he makes no specific reference to the history of legal theory, to intellectual history generally, or to the influence of Scottish Enlightenrnent culture and philosophy more specifically as potential areas for further research.

In another piece published the same year on the development of the nineteenth-century business entities which brought about the construction of public utilities and transportation in Ontario and were incorporated through individual statutes, Risk writes:

the legitimacy of the corporation was a reflection and an element of pervasive attitudes. The society shared a faith in progress and economic expansion, and a belief -- expressed in act rather than articulated -- that the proper function of government was to facilitate private a~tivity.~~

25 1 Dal. L.J. 227 at 228.

26 R.C.B. Risk, "The Nineteenth Cenkiry Foundations of the Business Corporation in Ontario" (1973), 23 U.T.L.J. 270 at 306. 155 We know from our outline of Scottish immigration patterns to Canada that lobbying for appropriate legislation were the Scottish business men who dominated these

Redgling corporations. We know from our survey of Scotüsh cultural attitudes that the belief in improvement of society through economic activities supported by governrnent institutions (a cultural attitude quite markedly different from American laissez-faire values) derives from writers such as Francis Hutcheson and Adam Smith - but Risk does not make these connections here.

In a companion study of the law of contract during the sarne peri~d~~,Risk makes very similar comments about the proper functions of law and governrnent to support individual autonomy and entrepreneurship without supplanting the duty of individuals to take responsibility for attaining their own material pro gr es^^^. Again, the Scottish origins of al1 of these ideas are by now readily identifiable to us, but Risk stresses only the "extensive influence of the law of England" and the lesser but still pervasive influence of American law as it was discussed and used in the cases when no goveming English authority could be f~und.~'

Risk's most ambitious reconstnictive legal theory project may be his 1993 paper, "The Privy Council and its Scho~ars"~~,and I want to consider this article in some detail here. The Privy Council was undeniably an "ideological state apparatus",

n R.C.B. Risk, "The Golden Age: The Law About the Market in Nineteenth-Century Ontario" (1 976) 26 U.T.L.J. 307

2a Ibid, at 337-8

28 Ibid., at 339

30 Richard Risk, "ke Privy Council and Its Scholars: Canadian Constitutional Law" (1992) University of Manitoba Canadian Legal ~istor~Project Working Paper Series. 156 in Knafla and Binnie's sense of this term. and Risk draws on case comments by comrnon law lawyer-scholars who wrote about judgments of the Supreme Court and the Privy Council after Confederation and up to the late 1970s. He begins with

A.F.N. Lefroy's 1897 text, The Law of Leoisiative Power in ~anadswhichRisk characterizes as a practitioner's guide to the "propositions" derivable from the early constitutional cases together with extensive but quite uncritical commentary and explanation thoroughly deferential to state authority. Risk's description of this work also emphasizes its formalist tendencies:

Lefroy's text was a manifestation of understandings of legal reasoning and scholarship that became dominant among scholars in England and the United States during the second half of the nineteenth century. The basic elernents of this thought were the equality and autonomy of individuals (and legal entities generally), a division between the public and private realms, a conception of rights as absolute spheres of powers, the paramountcy of the common law and the courts, and a belief that legal reasoning was sharply separated from politics and c~ntext.~'

Although Lefroy joined the faculty at the University of Toronto three years later, well into the 1930s most of the legal scholarship which appeared in the professional periodicals was written by practising lawyers, and Risk points out that this unreflective formalist stance asserting a principled separation between law and politics was largely sustained in the practitioners' analyses.

However. Risk identifies a dramatically new approach to legal criticism and interpretation which was initiated by Toronto legal academic W. E. Ranef2 in 1925

31 Risk, ibid., at 7-8. Risk has written at much greater Iength about Lefroy in "A. H. F. Lefroy: Cornmon Law Thought in Late Nineteenth Century Canada" (1991) 41 U.T.L.J. 307.

9.E. Raney, "Another Question of Dominion Jurisprudence Emerges" (1925) 3 Can. Bar Rev. 614 in a relatively short article Raney wrote critiquing the Privy Council doctrine of national emergency emerging out of the early constitutional cases concerning the manufacture of ~iquor.~~Raney was not at al1 deferential; it waç his view that the

Privy Council had engaged in an excessively forrnalist argument to justify displacement of the legislative authority of the Canadian Parliament, and he cornes close to accusing rnembers of the Cornmittee of personal hypocrisy when he writes that in order "to protect one fiction. another was invented? Risk also points out that a brief Canadian Bar Review editorial that same year. signed "F.E.H.", endorsed

Raney's critique of the Privy Council in which Russell was "relegated to the scrap

But in Risk's opinion it was McGill professor H.A. Smith who, beginning in the rnid 1920s. started to develop these critiques in a rnanner which influenced academic approaches to constitutional interpretation for the next fifty years. One such article identified by Risk is Smith's 1926 paper, '7he Residue of Power in CanadanJ6,in

33 Raney was motivated to write this piece by Lord HaIdane's judgment in the Lemieux Act Case (1925) AC. 396 in which he characterized public drunkenness as "analogous to an epidemic of pestilence". In Raney's opinion, Haldane had rendered absurd Sir Montague Smith's dicta in Russell v. the Queen (1992) 7 AC. 829 that public drunkenness was a national emergency justifying the Canadian Temperance Act of 1878 in accordance with the S. 91 provision in the 1867 Constitution relating to peace, order and good government.

34 Ibid., at 615 and 617. Raney lists al1 of the disparaging comments which had been made about Russell in other judgments rendered by the Privy Council in the intervening years and asks, "So rnuch for the formal argument, What are the personal views of the members of the Comrnittee on the question of the authority of the Russell case?"

35 F.E.H., "Editorial: Judicial Committee Differences" (1925) 3 Can. Bar Rev. 135

36 H.A. Smith, "The Residue of Power in Canada (1926) 4 Can. Bar Rev .432; in my analysis of this paper and of the other acadernic scholarship cited by Risk, I have gone considerably beyond Risk's theoretical interpretation to speculate about "thematic connections" to the Scottish Enlightenrnent thought we have already considered. This is a somewhat uncornfortable process for which there is no tight rational 158 which Smith questions the distinction made by the courts between the interpretation of statutes and the interpretation of other private legal documents, such as wills or contracts. When the words of these private legal documents are "not unambiguous", said Smith, the courts quite properly look to the circumstances in which they were written, the contextual meaning of the words as they relate to provisions in the same document which are clear, and the general conduct between the parties: al1 this becomes evidence readily admissible to show the intention of the parties. Smith argues that it defies "logic or common sense" not to use the same contextual approach (which he notes is familiar to us from historical and literary criticism) in interpreting statutes, and he further cornplains that the failure to do so had "produced the very serious result of giving Canada a constitution substantially different from that which her founders ir~tended."~~

Smith looked to the intent of the legislature as set out in the debates at the time of Confederation; he argued that the words of the statute were not fked but took on meaning only in the context and for the purposes for which they were used. This invocation of literature and history is certainly compatible with the interdisciplinary stance familiar to us from the Scottish Enlightenment and congruent with the contextuality and plurality which we associate with the Murray tradition at McGill where Smith was teaching. Unfortunately, there is not much information available on

Smith's career or his influences, and he returned to England in 1929 without

justification beyond the evocation of intellectual atmosphere encouraged by Knafla and Binnie; see also the discussion of willing assumption of theoretical discornfort, infra. at notes 63 and following.

37 Ibid., at 434. 159 personally contributing more to the history of legal theory in Canada.

During the 1930s, says Risk, W.P.M. Kennedy at University of Toronto, John

Willis at Osgoode, Vincent MacDonald at Dalhousie and Frank Scott at McGill al1 continued to extend Smith's opposition to the rigid modernist misinterpretations of the

Canadian constitution revealed in the nile-driven and literalist judgrnents generated by the Privy Council. They called instead for Ylexibility and power of adaptation" fluctuating "from time to time" with contextual interpretation of statutory lang~age~~ and complained bitterly that Bennett's federal government was being thwarted in its attempts to control the Depression economy by the Privy Council's rulings on constitutional separation of powers cases and the validity of New Deal fiscal policy legislation.

Risk considers these new Canadian beliefs about legal reasoning to be influenced by the American sociological jurisprudence of Roscoe Pound and also by the American legal realists.jg These schools rejected legal formalism and the separation of law from politics in favour of an analysis of law related to its social effects, tempering liberal humanist individualism with a new view of collective responsibility. However. although al1 of these scholars were widely read, only Willis

38 Risk draws in particular on MacDonald's article, "Judicial Interpretation of the Canadian Constitutionn (1935) 1 U.T.L.J. 260 at 280, from which these quotations are taken, but his footnotes provide a useful compendium of articles written during this period by al1 four scholars.

38As noted above in Part III at fn. 77 and text (infra), Pound's sociological approach to jurisprudence, which could be linked to the Scottish Enlightenment eclecticism of Lords Monboddo and Kames discussed in Part I at fn. 43 and text (infra) was already being displaced in the 1930s by the new American legal realism evolving at Yale, Columbia, Chicago and Johns Hopkins. See Neil Duxbury, "The Birth of Legal Realism and the Myth of Justice Holmes" (1991), 20 Anglo-American L-Rev. 2 81. The Realists (including Oliver Wendell Homes and Kari Llewellyn) insisted that law and politics were not separable. Legal reasoning is inevitabiy political, but in general stilt an instrumental tool for improving social conditions, 160 had actually studied outside Canada. at Harvard. The others were immersed in the

Canadian legal educational system and more generally in Canadian culture which we know was thoroughly permeated with Scottish Enlightenment thought. Of course,

Lords Monboddo and Kames had prepared lengthy and pioneering studies in comparative sociology and in the theory of language4', but there is no way of determining if these Canadian scholarç were familiar with their rather obscure works.

In any event, the views they expressed in their legal theory and criticism are equally derivable from the integration of economic theory with moral sentiment we explored in

Adam Smith, with which they would undoubtedly have been familiar, and more generally in the common sense philosophy and the Calvinist vahes of persona1 responsibility and duty still very much to the fore in early twentieth century Canadian culture.

And this was a stream in Canadian legal scholarship which, as Risk notes, was continued by Kennedy, MacDonald and Scott into the 1940s and 50s, and then further expanded through the work of Bora Laskin and William Lederman into the 60s and 70s. For example, Risk points to Laskin's criticism of the Privy Council for its

"cold abstract logic", its "rigid abstractionism" and its indifference to the "social and factual considerations in the new deal legislation" which were fundamental to "our society and its contemporary prob~erns".~'Laskin's voice is very like the cal1 to reintegrate social and moral approaches with empirical rationality calied for in the

40 Supra, Part I at note 43 and text.

41 Ibid., at 48, citing Bora Laskin, "Peace Order and Good Govemment Revisitedn (1947) 25 Can. Bar Rev. 1054 at i059, 1060, 1080 and 1082. 161 philosophy which George S. Brett had developed at University of Toronto and which was taught at the Kennedy School when Laskin was studying there, the approach which Irving called the first truly indigenous movement in Canadian philosophy.

Lederman was first to stress that the courts should engage in balancing the overlapping powers of federal and provincial jurisdictions, because the ambiguity and incompleteness of the B.N.A. Act required such balancing as an alternative to purely rational analysis; echoing H.A. Smith, he thought that the words of a statute could became meaningful only when they were "related to the cultural, social and economic realities of the society for which they were and are intendedt'" and that the court ought to allocate power in any given instance to the level of governrnent which could produce the optimum result for the people. Lederman's approach, in Risk's analysis, was much more optirnistic than the gloomy stress of F.E. ~a~rie~~on the

"uncertainty and contingency" of legal judgments influenced by politics in which he despaired of finding any moral principle -- a Hurnean stance without Hume's cheerful pragmatism. We might also consider Lederman as a manifestation of the extraterritorial reach of George Brett's dynamic pluralism beyond University of

42 Risk is quoting from W. Ledeman, 'Thoughts on Refom of the Suprerne Court of Canada" (1970) 8 Alberta L.R. 7; "Unity and Diversity in Canadian Federalism: ldeals and Methods of Moderation" (1975) 53 Can. Bar Rev. 597; and "Classification of Laws and the British North Amencan Actn in J. Corry, F. Cronkite and E. Whitmore, eds. Lenal Essays in Honour of Arthur Moxon (Toronto: University of Toronto Press, 1953)

43Risk is refemng at 53-4 to F.E. LaBrie, "Canadian Constitutional lnterpretation and Legislative Reviewn (1949) 8 U.T.L.J. 298. He considers that LaBrie's work had very Iittle influence on the further direction of Canadian legal theory. However, he does note a certain affinity between LaBrie and Patrick Monahan, citing Monahan's "At Doctrine's Twilight: The Structure of Canadian Federalism" (1984) 34 U.T. L.J. 84 in which there is similariy an assertion that the courts have generated no principled distinction between law and politics in their. constitutional jurisprudence. Toronto; as Hendel noted, Brett influenced a whole generation of Canadian philosophers and Canadian academics in other disciplines more generally.

Risk concludes his very suggestive paper by indicating that the Canadian scholars' writings about legal reasoning were "shaped by rnodels from England and the United States". He expresses a hope that future thinking by Canadian legal scholars about law will be more distinctively Canadian, reflecting Canada as a distinctive country." As I have tried to sketch out in a preliminary manner here, future research into the past thinking of Canadian legal scholars such as Smith or

Kennedy or through detailed examination of those passages in their journal articles which reflect an interest in legal theory, might be able to demonstrate that a distinctively "enlightenedt' approach already existed in the late nineteenth and early twentieth centuries. Given the shared culture in which they lived and worked, these acadernics may very well have produced a body of legal academic writing that reflects the influence of a distinctively Canadian intellectual history out of which it emerged -- and that would not be a surprising result. But to engage in such an exercise would require chasing the will O' wisps of cultural ephemera in an attempt to recreate that most elusive entity, what Knafla and Binnie cal1 the legal mind of a community.

Risk's 1993 paper, as interesting and useful as it is, looks specifically at early

44 Ibid., at 63

45 Risk does not propose a more extensive reconstruction of Canadian legal theory through examination of early academic writing, but he does suggest that a comparative study of Scott's academic legal writing and his poetry would be valuable. 163 constitutional law and case commentary exclusively within the Canadian context; his analysis of legal theory is isolated from cultural or intellectual context and secondary to this main focus. And Risk's methodology has been enormously influential on a generation of Canadian legal historians. However, most of the other Canadian legal historians who attempt any reconstruciive approach to legal history are considerably narrower than Risk in their theoretical scope, considering the history of legal theory peripherally and incidentally (if at ail) as they focus on historical events and "state law" developments of traditional legal significance."

A typical example is a paper by Ken Cruikshank with a very promising title evoking common sense as the ideology underlying late nineteenth-century railway regu~ation~~.As Cruikshank tells the story, the judgments of the Ontario courts were excessively formalistic, relying on the authority of the language in the statutes without taking any responsibility for resolving practical disputes between shippers, railway companies and the public. With the hearty endorsement of the Toronto Globe, a proposal was made by DyAltonMcCarthy in the 1880s to establish a regulatory commission comprised of one railway oficial, one lawyer and "a third man of common sense" which would adjudicate quickly and less expensively by creating a

46 See, for example, B. Baker, "So Elegant a Web: Providential Order and the Rule of Secutar Law in Early Nineteenth Century Upper Canada (1984) 38 U.T.L.J. 'i84; Elizabeth Brown, "Equitable Jurisdiction in the Court of Chancery in Upper Canada" (1983) 21 Ottawa L.J. 275; John C. Weaver, "While Equity Slumbered; Creditor Advantage, A Capitalist Land Market, and Upper Canada's Missing Court (1990) 28 Osgoode Hall LA. 871; and Dale Gibson, "The Development of Federal Legal Institutions" (1992) University of Manitoba Canadian Legal History Project Working Paper Series

47 Ken Cruikshank, " 'Law' versus 'Common Sense' : Railway Shippers and Judicial Regulation, 1850- 1903", Vol 2, Papers Presented at the Canadian Law in Histow Conference (Carleton University, 1987) at 76- "forum of common sense". And finally. in 1903, just such a Board of Railway

Commissioners was established. Cruikshank concludes that it was "judicial conservativism [which] contributed to the emergence of at least one of the key institutions of the modern state, the independent regulatory commission"." But although he invokes common sense as a shared ideology within the business community which was at odds with the formalist ideology of the courts, Cruikshank

makes no mention of the strong influence of common sense philosophy. There is no

mention of common sense constituting the "legal mind of the community" as a set of beliefs held in common, that vigorous Calvinist practicality we have attempted to trace out of Thomas Reid and into Ontario society through the work of Beaven and Young and George and Watson during that era.

4. Baker's Legal Pantheism

A suwey of Canadian writing in legal history indicates that there has been a striking tendency to exclude anything beyond extremely brief reference to the history of legal theory, and an even more striking tendency to omit any linkage of historical legal theory (on those rare occasions when theory is tentatively suggested) to any general history of cultural context or intellectual history or history of philosophy. In addition to the Risk study of the Privy Council scholars, which as we have seen does evoke a fairly specific theoretical history (although in isolation from its intellectual

48 Ibid., at 115. 165 context) the other notable exception to this tendency is the very scholarly and copiously documented study prepared by G. Blaine Baker in 1985 entitled "The

Reconstitution of Upper Canadian Legal Th~ught".~' Baker examines catalogues to survey the contents of various legal libraries in Upper Canada during the nineteenth century and speculates that the availability of an extremely eclectic literature of law rnust have affected the development of legai culture. Looking at the library as his

"ideological state apparatus", Baker offers an amorphous evocation of the intellectual atmosphere of nineteenth-century Ontario very like the approach envisioned in the

Knafla and Binnie analysis. Again (as for the Risk piece) I want to consider this paper in some detail.

lnterestingly enough, Baker rejects Risk's view that English law dominated legal attitudes and legal institutions during the mid-nineteenth cent~ry.~OHis extensive research provides some very convincing evidence of the lively pluralism characteristic of legal learning for at least the half century before 1890, when (Baker would agree) Canada did revert to legal formalism and intense anglophilia. But earlier in the century, when access to legal material was extremely dificult, there had been a tendency to embrace eagerly whatever legal authorities could be mustered.

When Upper Canada was setting up its first law courts, about al1 that was available to assist lawyers and judges was the armful of English digests and abridgements that

William Osgoode had brought over with him in 1792, together with sirnilar works

49See G. Blaine Baker, The Reconstitution of Upper Canadian Legal Thought in the Late-Victorian Empire" (1985)3 Law & Hist. Rev. 219 loaned by various jurists who provided access to their persona1 libraries or made donations to Osgoode Hall's Great Library after it was built in the 1830s. Heavy annotations and the interleaving of pamphlets and letters within these legal sources indicate that Canadian lawyers engaged in serious exploration of the ideas contained within the such treatises and wntten records of lad1,a variant on that element of personal response which we have seen was encouraged in the lecture and discussion methods imported from Scotland into Canadian educational institutions.

However after 1840, acquisitions by the Law Society for the Great Library increasingly focussed on American treatises and reporters as well as international sources, such as Justinian's Diaests and Napoleon's Code, and also included interdisciplinary works in philosophy and political science not strictly confined to legal topics. By 1889, on his returning from touring American law schools. Osgoode

Principal Reeve felt able to announce that the Great Library was superior even to the law library at HarvardmS2

Baker points out that up to the turn of the century, these American and continental legal authorities were as frequently cited in the published reporting series

51Ibid., at 289. 1 obtained thmugh family connections a first edition of William Renwick Riddell's LegaI Profession in Upper Canada in its Earlv Periods (Toronto: The Law Society of Upper Canada, 1916). The book plates indicate it was first given to Walter S. Hemngton by the author, and then passed into the Iibrary of Scottish scholar William Colgate, the art historian who documented the lives of the Group of Seven. Also out of William Colgate's library is my copy of C.H.A. Armstrong's The Honourable Society of Osaoode Hall (Toronto: Clarke, Invin & Co., 1952). Although these works are considerably later than the period described by Baker, their marginalia demonstrate a continuation of the tradition he describes. Both have been lavishly annotated by Colgate, with his comments and corrections of "errors" of fact and impression, and when I received them still retained inserts of newspaper clippings of related interest, including Colgate's own review of the Armstrong book.

52 Ibid., at 236 167 as English law, which was not then especially revered; perhaps English law was simply not scholarly enough to meet Scots-influenced Canadian tastes. He notes also that the Law Society refused to admit English barristers to practice because their training was thought defective and speculates that Canadian jurists preferred

Arnerican case law because they considered American commercial circumstances to be more similar than the English to our o~n?~And Baker demonstrates that there was extensive cross-reference, which he calls "legal pantheism", between judgments in Upper and Lower Canada (not surprising especially after their political union in

1841 into the Province of Canada) as well as between ~rnedcanand Canadian law in the Maritimes?

But Baker's analysis of the Scottish contribution is necessarily less conclusive.

He stresses that "eighteenth century Scots moral philosophy and natural law theory was . . . a further source of inspiration for Upper Canada's developing intel~igentsia"~~citing in particular those excerpts from Francis Hutcheson and Adam

Smith (among others) which the catalogues indicate were required reading for law students and which would have been part of every gentleman's education. On this basis, he distinguishes early nineteenth century Canadian legal culture, which imported "Scots academic culture" linking "rnorality and private law and a preoccupation with legal principles, reason and coherence" from its American

53 Ibid., at 248-9; he cites Oliver Mowat in support of mis theory,

54 Ibid., at 242-6

55Ibid., at 257 168 counterpart where "classic individualism and social ambition" resulted in a markedly different "materialistic ideo~ogy".~~Baker even makes reference to several reported cases in which the judgments explicitly draw on Scottish extra-legal sources, although

(not surprisingly) not on Scottish law?

However, he also makes it clear that "citation-counting is neither the most subtle nor accurate method of gauging influence [because] it fails either to expose or take into account the prevalent culture of argument, the function of legal syrnbolisrn .

. . in explicit recurrence to foreign sources of law, or underlying ideological cross- pollination." '' The cases which I have examined in these reporters are notable for the daunting and dutiful thoroughness of reference to American and English cases and to other extra-legal sources including English philosophy, just as Baker promises, but the references tend merely to be listings without much explanation of their application to the case at bar. Presurnably, because these were shared elements of a cornmon culture and their significance would have been clearly understood by the lawyers reading them, it could be expected that mere flagging of key references and concepts would be sufficient. But we no longer share that short-hand. That is why citation-counting fails to reconstruct for us precisely what this flagging signified.

56 Ibid., at 258

57 Ibid., at 290; Baker mentions White v. The Ship Daedalous (1818) Stuart's Rep. 130; Grav v. Worden (1870) 29 U.C.Q.B. 535; and Toms et ux. v. Whitby (1874) 35 U.C.Q.B. 195, which cite variously John Ramsay McCulIogh1sPrinciples of Political Econornv, Adams Smith's Wealth of Nations; and William Anderson's Annals of Commerce.

58 Ibid., at 260. 5. Contingent Theorizing

As Baker himself acknowledges (in a rnarvellously nineteenth century locution),

"ofttimes reflexive embrace of ideas which are merely 'in the air' is being shown to be a difficult process to document"; he singles out Scottish Enlightenment thought as one aspect of the development of Upper Canadian legal thought which "merits much more careful attenti~n".~' Risk's work assumes that English law was the predominant influence in nineteenth-century jurisprudence, whereas Baker insists on his "pantheism" of legal and extra-legal sources; however, Risk's careful examination of particular cases with only peripheral reference to theoretical elements, paradoxically enough, provides greater scope for confirrning the Scottish

Enlightenment philosophy that was "in the air" than does Baker's more explicitly theoretical study.

But of course. reading the Risk piece and the sources he cites in this way may constitute no more than identification of themes. As Barry Wright puts it:

The thematic characteristics of intellectual outlook and institutional tradition tend to have highly abstracted confirmatory hindsight about them when used as general theories. They lack specificity in the sense that they are not rigorously tested in concrete historical circumstances or clearly tied to local condition^.^^

Wright is certainly skeptical enough about identification of these "thematic considerations" that we could assume he would agree with Hume's caution that we

59 Ibid., at 290.

%/right. op. cit, at 489. 170 need to be alert to the way in which the subject matter as well as the thinker can be transformed by the process of thinking6' - except, of course, that to do so would be to apply precisely the type of "confirmatory hindsight" analysis to his work from which he is here atternpting tu distance hirnself.

Any "proof' that the influence of Scottish Enlightenment philosophy created a distinctively Canadian common sense jurisprudence between, Say, 1850 and 1950 which has subsequently influenced the development of Canadian legal postmodernisms would require, at a minimum, a meticulous examination and rigorous testing of a large body of Canadian case law and case commentary within a specific subject area juxtaposed against a comparable body of case law and case commentary in the sarne subject area from another jurisdiction. Such a comparative study would employ Risk's methodology in the Privy Council article. but more self- consciously than he does there and with a more specific focus on cultural environment in the reconstruction of legal theory. Fused with Risk's methodology, we would need to adopt aspects of Baker's rigorous bibliographie s~urcing.~~So far, James Waiker's review of the Supreme Court race relations judgments between

1914 and 1955, in which he argues that rnodernist rules were consistently modified

61Supra, Part II at note 20

62Obviously, this kind of scholarship is also beyond the ability of any individual academic and requires the coordination of a team of researchers and writers; funded by a SHRC gant, Linda Hutcheon is presently supervising just such a comparative project reconstnicting the histories of postmodem literatures in Latin America and Central Eastern Europe. It would be fascinating to determine wliy Scotland itself, where the Scottish Enlightenment presumably had the greatest cultural impact, has never been accused of developing a postmodem culture and to compare Canadian with Australian jurisprudence where the afinities are presumably much stronger. 171 by common sense interpretation~,6~rnay offer the most sustained scholarly examination of one characteristic element of Scottish Enlightenment thought within

Canada. However, tike Cruikshank, Walker does not connect a common sense stance to Scottish cultural influence - even though he does note the pervasiveness of that influence.64

And if a more ambitious study were to be undertaken with historical circumstance linked to local conditions (as Wright suggests is necessary), such an effort would still be ironically and significantly at odds with Scottish Enlightenment concepts of multiple causation and rolling evolution between cause and effect.

Moreover, the result - if Williams is right about the general lack of legal theory afier modernism, and if Baker is right about the insignificance of citation-counting -- might very well be as disappointing as the Paul Rogers sur~ey~~seeking evidence of directly Scots-influenced American jurisprudence.

It is true that, as lan MacKeigan (then Chief Justice of Nova Scotia) wrote in

1984, "We need to know much more. not only about the great lawyers of the past and the history of courts and government but also about the history of legal concept^".^^

63Supra, Introduction note 28.

Walker notes that a study, "Racial Origins and Nativity of the Canadian People", published by Supply and Services in 1942 and prepared by economics professor W. Burton Hurd, examined the 1931 census data in order to measure the process of assimilation of vanous racial groups. Hurd pointed to the pervasive integration of the Scottish immigiant into every sector of Canadian society and attributed that integration to Scottish initiative and Scottish dislike of racial segregation. See Walker, op. cit., at 17-18.

65 Supra, Part I note 26.

66 lan MacKeigan, Foreword to Law in a Colonial Societv: The Nova Scotia Experience, eds- Peter Waite, Sandra Oxner and Thomas Bames (Toronto: Carswell, 1984) But it is also tnie that we are as unable to reject theorizing by an act of will as we are unable to reject entirely the Aristotelian habits of rnind which (Charles Taylor assures us) are an ineradicable element of human experience. Canadian legal scholar Alan

Hunt spells this out, in a passage which is strikingly evocative of both Stanley Fish's denials of the possibility of stepping outside one's own conviction^^^ and the common sense doctrines of intuitive causation:

the renunciation of theory can only have the result of either importing an implicit theory via the concepts used in the conversation since there can be no concepts that are theory-free, or by relying only upon common sense or idiomatic language of rendering the conversation dependent on intuitive understandings between participants. We cannot evade theory since theory is nothing more than the positing of connectionl interconnection between two or more concepts. 68

Simply to posit a connection between Scottish Enlightenment philosophy as it was modified and disseminated in Canada and a particularly Canadian postmodernisrn apparent in our legal institutions and legal structures would be, by

Hunt's relaxed definition, suffcient to constitute theorizing. At the same time, it has to be acknowledged that the absence of more rigorous evidence together with this loosely pluralistic approach may offend those who assert a "need to take theory seriously". If so, says Wesley Pue. I can adopt this theory as a "contingent position .

. . always open to reassessment in the light of new empirical dataYBg

67 Introduction, supra at note 24

68A. Hunt, "The Critique of Law: What is 'Critical' about Critical Legal Theory?" (1987) 14 J. of Law & Soc. at 9, cited by Susan 8innie, "Some Refiections on the 'New' Legal History in Relation to Weber's Sociology of Lawnin Canadian Perspectives on Law and Societv, Issues in Canadian Lecial Historv, eds. W. Wesley Pue and Barry Wright (Ottawa: Carleton Library Series, 1995) at 31.

69~.Wesley Pue. "Theory and Method in the History of Lawn in Law & Society. Issues in Leqal Historv, op- cit., at 24-5. 173 Certainly, I would prefer better empirical evidence and tighter proof of the first part of my theory, the connection between nineteenth and early twentieth century legal attitudes in Canada and Scottish Enlightenment philosophy and culture. But to reiterate the obvious, that connection could be established conclusively (if at all) only by a detailed study well beyond the scope of this paper - particularly if I am going to rnove on to the second part of rny theory, a consideration of the connections between nineteenth century Scottish Enlightenment thought and late twentieth century postmodernism. However, I can still take some comfort in Pue's proviso that Iftaking theory seriously means allowing uncomfortable approaches to bother you."" The justification of this willing assumption of uncomfortable contingency (and as modernists, we still yearn for rational justification) can only be a conviction that such a theory has the power to illuminate. even if provisionally, an intellectual atmosphere which is resistant to reconstitution or examination in any other rnanner.

In the next section of this paper. then, I want to set aside any further attempts to amass evidence of direct historical causation in support of my admittedly contingent and somewhat uncomfortable theory. Instead, I will expand on the provisional definitions of rnodernism and postmodernism with which I began this study, seeking to connect these concepts to the Scottish Enlightenrnent philosophy we have surveyed and looking for connections that other writers outside Canada have noted (or more surprisingly, failed to note) behnreen postmodernism and Scottish

Enlightenment thought.

70 Ibid. 174 Postmodernism has been challenged and rejected by modernists chiefly because of their perception that it delights in moral vacuousness or even in a more deliberately destructive nihilism. In this context. the heart of my project is the examination of certain postmodern philosophers who are variously and vigorously engaged in the project of drafting a postmodern ethics, and I will draw on moral sentiment and common sense in Scottish Enlightenment to illuminate some of their ideas. It will then be helpful to consider more specifically how Canadian legal postmoderniçts are concerned with reinfusing moral meanings back into contemporary situations of contingency and multiplicity in a manner which is, to me, reminiscent of the efforts of Canadian common sense philosophers to reinfuse moral meanings back into the skepticism and flux of Scottish Enlightenment doctrines of moral sentiment,

Posnerian law and economics is the area of legal theory most compatible with the scientific rationality of modernism, which makes it particularly challenging to look for evidence of Canadian postmodern theory in Canadian law and economics. The tension between modernist and postmodernist legal morality has also been explicitly focused on the liberal rights talk generated by interpretations of the Charter of Rights and Freedoms and its associated jurisprudence. in support of the concept that a postmodern state such as Canada will necessarily have evolved a postmodern law, 1 want to look at some of the Canadian legal theory which explores these subjects. PART V

MORAL SENTIMENT, COMMON SENSE AND POSTMODERNISM

1. Moderne versus Postrnodernity

As 1 noted in the preliminary pages of this paper and flagged as a topic

requiring further exploration in the previous section, postmodernisrn is a concept which is notoriously resistant to the kind of precise definition which we associate with

modernist law-as-science. Modernist rationality is, by definition, dichotomous;

rnodernists think that we think only when we engage in the purely intellectual activity of separating out empirical evidence and logical conclusions into sharply-boundaried

categories.' To a modernist, what is postmodern would have to be consistently

identifiable as not-modern, and the modernist is frustrated by the postmodernist's

refusal to sustain a reciprocal distinction and to stay on its own postrnodern turf.'

Postmodernism's characteristic stance involves a paradoxical inclusion and a

or example, modernism's insistence on thinking dichotomously by selecting between "forks" is a phenornenon descnbed cleariy by Mark Kingwell in "Let's Ask Again: 1s Law Like Literature?" (1994) 6 Yale J. of Law & Hum. 317 at 318.

2See John McGowan, Postrnodemism and its Critics (Ithaca, N.Y.: Comell University Press, 1981) at 42 and following for a discussion of the Kantian contribution to modemist law in the context of postmodemity. A more recent and historical account of this relationship is provided in lan Ward, Kantianism, Postmodemism and Critical Leqal Thouciht (Dordrecht, The Netheriands: Kluwer Academic Publishers, 1997). Ward argues persuasively, through meticulous examination of key texts selected from the writings of Kant, Heidegger, Sartre, Foucault, Derrida, Lyotard, Rawls, Rorty, Dworkin, Comell and Hutchinson (among others) and by stressing the ethical weight of postmodern textual analysis, that there are affinities between Kantian rationality and postrnodemisrn; one imagines that Sir William Hamilton and John Watson woutd have been interested in Ward's work. Ward charactenzes his study as a nonuniversalizing history of legal theory and asserts, very sensibly, that it is not necessary to present it within' any consistent historical context (at 1). If postrnodemism can be conceptualized as an unstable convergence or integration of neoplatonic and Kantian doctrines of rationality with neoAristotelian doctrines of moral sentiment, then Ward's book provides the other side of the account which this paper seeks to present 176 subversion of the modernist tradition; postrnodernism resists simple dichotomy and tolerates ambiguity because postmodernists are skeptical empiricists who believe that ambiguity is what each of us as an individual is capable of experiencing. But as rnodernists exiled within new territories of postmodernism we are sornewhat reluctantly compelled to inhabit, we still fall easily into the Kantian valorization of the rigour required to draw and to sustain rational distinctions. a rigour which is and ought to be what is rneant by intellectual and by moral activity.

The most interesting among the postmodernists adopt postmodern rnultiplicities of perspective not as a tool of rnalicious nihilism or despairing deconstruction or even out of an amoral pleasore in ludic joui~sance.~They believe that only postmodern attentiveness to contingency, to contextuality and to pluralist positionings can generate the nuanced morality which better satisfis Our longing for justice -- although there will still be occasions when the context itself clearly makes a traditional modernist approach most appropriate.

But rnodernists object that if justice were permitted to rest in ambiguity rather than being held to standards of universality and neutrality and objectivity, it would cease to be just; different legal subjects might be treated differently in like circumstances. Postmodernists respond that Our exasperation with postmodernism's slippery boundaries is tempered with the recognition of how often rnodemist rigidity

"6[issnis an inadequate translation of this word: "jouissance" is a term associated particulariy with the French decontructionist mode of postrnodernism. See, for example, Roland Barthes, The Pleasure of the (New York: Hill and Wang, 1975). See also Andreas Huyssen, "Mapping the Postmodem" in After the Great Divide (Indiana University Press, 1987) at 178 for a full discussion of this aspect of ludic postmodernism. 177 results in injustice, when different legal subjects are treated as if they were the same by default despite differences in their circumstances because the law we have is insufficiently flexible to permit it to differentiate. A postmodern legal systern (if this were not a contradiction in terms) rnight assert that individuals have a right to be treated differently at different times in saliently different circumstances, and presumably a reciprocal responsibility to treat others with the same contextual flexibility.

Jurgen Habermas, from whom 1 have borrowed the title for this section, describes Max Weber's examination of cultural rnodernity as it originated in eighteenth century English and European philosophy (outside the tradition of moral sentiment in Scotland). Modernity separated substantive reason into science, morality and art and then institutionalized law in a realm of expertise closed off from ordinary human experienceS4The archetypal situation in which we crave certainty and finality of adjudication by an expert and disengaged judge is the classic bipolar legal dispute between two adversarial legal subjects; only certainty can provide repose. If the plaintiffs story is "right" (on a civil balance of probabilities), then the defendant's story must be "wrong", and vice versa. Whether or not the defendant in a civil trial is in fact possessed of the capacity of the ordinary reasonable man, he is deemed to have that capacity, and we have collectively decided that it is just to do so

'hrgen Habermas. "Modernity versus Postmodemity" (1981). 22 New Gerrnan Critique 3 at 8. 178 for the rather utilitarian reason that it would be too diffÏcult to do other~ise.~

Our modernist negligence standard is based on the objective capacity of the reasonable man; our concept of contract derives from the autonorny of the contracting parties; our concepts of privacy and of property -- the right to exclusive use and enjoyrnent and the right to exclude others from similar use - are articulated in the Kantian concept of negative liberty, with the institution of law carving out a protective sphere around the individual. Although the quantum of damages will be determined by the judge and rnay be affected by such concepts as contributory negligence or breach of fiduciary duty or a balancing of public and private interests in nuisance analysis, the general principle is that the winner takes ail. Law is a blunt instrument, and that is why cases settle 95% of the tirne. Both the court-mandated push to mediation and the incentive to settle cases out of court (in the shadow of the law which both parties recognize to be the default position and with neither party wishing to risk complete loss and cost consequences) arise precisely out of the cornmon sense recognition that the parties to a dispute have the greatest stake in negotiating a compromise, middle-path solution which will be fairer to them than court-ordered adjudication ever could be.

In criminal law, the accused is found guilty only if the Crown can prove beyond a reasonable doubt that she has both done the wrongful act (actus reus) and had the

%ee Vaughan v. Menlove (1837), 132 E.R. 490 (C.P.), in which Tindall C.3. held that, although the defendant had the "misfortune of not possessing the highest order of intelligence", he ought still to be held to a level of caution "such as a man of ordinary prudence would observe" since otherwise liability would be "as variable as the foot of each individual". requisite subjective intention (mens rea) to do so! It was Kant who established that, because rationality is the essence of what it means to be human, we can and must exercise rationality with autonomy by obeying the laws of which we are the author - or, in the alternative, the state will be justified in taking away that autonomy by imposing incarceration or other penal sanctions. But so essential to human dignity is autonomy that our society has made a collective decision to free even those who on a balance of probabilities seem more likely than not to be criminal agents. It is always more important to protect the accused's liberty than to protect the public or provide reassurance that deterrence has been achievedm7

All of this is deeply farniliar to us. We may not even recognize the paradox of multiplicity inherent within the liberal focus on the autonomous legal subject.

Because, despite its avowed valorization of the principle of universality in both civil and criminal matters, existing modernist law does recognize and even insist upon a shiffing standard, from objective to subjective, to determine the intentionality of the legal subject in these sharply differentiated civil/criminal contexts. It is interesting to

6Consider a recent judgrnent by Mr. Justice David Hurnphrey (a judge noted for his irreverent good humour and iconoclastie attitudes outside the courtroom) in which he acquitted former subway-fare collector Wendy Lloyd of criminal charges of theft of $4,500 which was discovered rnissing after a Toronto Transit Commission audit. Humphrey said that a vestigiat doubt remained, which he characterized as "not a vibrant robust doubt marching behind a military band . . . [but] rather, a somewhat subdued but nevertheless discemable doubt". fn rejecting evidence by a computer expert hired by the TTC to interpret a videotape of the theft site at the time the accused alleged that she had been robbed, Humphrey stated, "My response was and still is, I am trying the case. not a computer". The tenor of this judgment is somewhat similar to the Scottish verdict, "not provenu: see Donn Downey, '"Probably guilty', judge says in acquitüng wornann, The Globe and Mail (Friday, March 20, 1998) at A8.

7~heLloyd case, supra, is obviously a relatively trivia! example of this doctrine at work. but the trilogy of wrongful convictions in the Marshall, Milnaard and Morin cases has reaffimed Our comrnitment to protection of autonomy of the accused by imposing the subjective standard and the cn'minal burden of proof. think about this shifting and contextual standard for legal intentionality as an element of modernist law which, like the premodernist traditions of equity and the incremental development of the common lad, anticipates the shifting contextuality of postmodernism. And of course there are circumstances within criminal law where it has become impossible for the courts to sustain the traditional modernist dichotomy of objective and subjective intentionality; consider, for example, the still unresolved problem of criminal negligence in c ut ton', or the contextual redefinition of self- defence in ~avallee,'~

At some level, we still see modernism and postrnodernism Iocked into an adversarial battie - plaintiff and defendant, accused and prosecutor -- and we are waiting for the definitive adjudication. It is difficult not to believe, as residual liberal humanists, that we can (and perhaps ought to) exercise our rational autonomy,

8 In this context, see supra, Part 1, "Scottish Law: an Histon'cal Overview"; the Scots tradition always integrated equity within its regular Iaw courts and its civil traditions of codification rejected the English common law tradition of rigid adherence to precedent. See also Part III, "The Maritimes: An lntegrated Traditionn which discusses the tradition of chancery courts in Upper Canada and in the Maritimes, and "Quebec: Pluralities of Mixed Jurisdiction" which discusses the impact of the civil code on the development of law in Lower Canada.

'R. v. Tutton (1989). 48 C.C.C. (3d) 129 (S-CC), a case in which parents had been convicted at trial of manslaughter through criminal negligence because (in accordance with their religious beliefs) they refused to administer insulin to their child. The majority of the court held, per Mclntyre J., that criminal negligence is determined on the basis of an objective test with consideration of the facts and a 'generous allowance' for factors peculiar to the accused. Wilson J. argued for a subjective and contextual standard for the mental element of the offence. R. v. Ginsrich (1991). 6 C.R. (4th) 197 (Ont. C.A.) upheld the objective standard for criminal negtigence on the reasoning that a wanton and reckless disregard for the lives of others becomes elevated to a crime by the magnitude of the particutar omission or commission.

10 R. v. Lavallee (1990), 55 C.C.C. (3d) 97 (S.C.C.)established that battered wife syndrome modifies the traditional objective element of the defence of self-defence, which had required as a condition of exoneration for the crime of murder (which, of course, requires the subjective element of mens rea) that the accused had had an objectively reasonable fear for his life at the actual tirne that his acts of self- defence resulted in death to his assailant. There have been numerous cases which have followed Lavallee and a considerable body of academic cornmentary. 181 simply choose modernism and reject postrnodemism. But it is my contention that it is not possible to choose. Canadians live in a postmodern society, our modemist law is continually evolving in postmodern directions, and the kind of enlightened and profoundly moral postrnodernisms we encounter in Canadian law adopt elements of the moral sentiment and the common sense tradition which we have already seen constitute one key element of our cultural heritage.

2. Postmodern Legal Subjects and Indeterminacies of Meaning

Even though a recognition of this limited contingency always inherent within modernist standards of legal intentionality rnay offer some comfort to those who seek to reject postmodernism for its indeterminacy, the single most troubling elernent of legal postmodernism remains its challenge to the liberal concept of the individuated rational legal subject. There are rnany sources to which we could look for help in understanding the postmodern subject, but Hans Bertens's capsule survey of the literature is a good place to begin." Bertens specifies that the postmodern individual has lost itself, become "decentered" and "indeterrninant"; it is "no longer a coherent entity that has the power to impose order upon its environment".

Postrnodern subjects exist instead in a "referential mode" which is phenomenological, shifting from one situation to another and constituted by the experiences and

IlHans Bertens, The Postmodern Weltanschauung and its Relation to Modernism: An lntroductory Surveyn in Approachina Postmodemisrn eds. Douwe Fokkema & Hans Bertens (Amsterdam/PhiladeIphia: John Benjamins Co., 1986) 9. interactions in which they engage. Drawing from a number of postmodem authorities.

Bertens develops a concept of the postmodern self in a fragmented world as consciously "antiheroic" in its "attitude of suspensiveness" and tolerant of fundamental uncertainty which gives rise to "radical episternological and ontological dou bt".12

To Bertens' sumrnary, we can add Jacques Derrida's postmodern critique of identity which provides that the very process of specifying a particular identity in a particular context "suppresses an alternative identity"13 of necessity, even if only temporarily, and thus distorts by exclusion those elements of the fragmented self which are surplus in meaning to the situation which is the focuç of discussion. And

Stanley Fish reminds us that in law, the definition of a legal subject is a social construction of that subject and an act of forceI4; as individuals, we can have no transcendental or outside viewpoint of the self which is separable from the contingent

12 Bertens borrows these phrases from Norman N. HoIIand, "Postrnodem Psychoanalysis" in Innovation Ranovation: New Perspectives on the Humanities eds. lhab and Sally Hassan (Madison: University of Wisconsin Press, 1983) and from Alan Wilde, Horizons of Assent: Modemism, Postmodemisrn, and the lronic Imasination (Baltimore: John Hopkins University Press, l98l).

13Joel Handler discusses this aspect of Derrida's work in "Postrnodemism, Protest, and the New Social Movements" (1992) 26 Law & Soc. Rev. 4 697 at 699, although unfortunately he does not cite a particular source; for a similar account of the self, see Jacques Derrida, "Structure, Sign and Play in the Discourse of the Human Sciencesn in The Languaaes of Criticism and the Sciences of Man: The Sûucturalist Controversv eds. Richard Macksey and Eugenio Donato (Johns Hopkins University Press, 1970) at 247.

14Although Fish makes no reference to his work here, it is of course Michel Foucault who is the postmodem theorist most closeiy associated with the ubiquity and multiplicity of relationships of power; see The History of Sexuality, op. cit. in Introduction, note 11; see also Foucault's "The Means of Correct Trainingn in The Foucault Reader ed. P. Rabinow (New York: Pantheon, 1984) and "Politics and Reason" in Foucault: Politics, Philoso~hvand Culture ed. L Kritzman (New York: Routledge, 1988). An understanding of force is the element of Max Weber's "elective affinities" which Susan Binnie considered to be fatally absent: see supra, Part IV at note 17 and text, infra. contexts in which we find ourselves situated.15

When Terry Eagleton asserts, in his recent and splenetic attack, The Illusions of Postrnodernism, that "we are al1 born prematurely, unable to look after our~elves"'~,it is an implicit modernist notion of rational self-suffkiency which he is invoking. What his metaphor of prernature birth implies, of course, is that in youth (or in age), before (and after) persons are capable of rational self-sufficiency - or even by extension in situations where the persons in question belong to some benighted

Third World culture which has not yet evolved to the point of adopting the Western liberal cult of rational agency and the individuated self - such persons are in grave danger of being deerned quasi-humans. And this inevitable conclusion is curiously incoherent with other normative elements of Eagleton's critique. As a neoMarxist particularly piqued by postmodernism because he sees in it the triumph of new

? 5See Stanley Fish, Doincl What Cornes Naturallv, Channe. Rhetoric and The Practice of Theory in Literaw and Lecial Studies (Durham and London: Duke University Press, 1989) at 523 where Fish expresses his view that a failure to consider force may not be as fatal as Binnie supposes to an understanding of pluralisrn: Legal actors, like everyone else, live within the temporary ascendancies they at once affirm and undo (by endlessly modifying the givens that make action possible), and no analysis of their situation . . . will remove them from it, This is to Say, the acknowledgement that from the long-run point of view law is inseparable from force is itself without force, since no one inhabits lelong-run point of view, and in the succession of short runs that make up Our lives, the distinction between law and force is unassailable, although one can always assail the form it has presently assumed. See also Drucilla Comell, Tme, Deconstruction and the Challenge to Legal Positivismn in Lesal Studies as Cultural Studies, a reader in (post)rnodem critical theory (State University of New York Press, 1995) 231 ai 251, where in commenting about Fish she writes: For Fish . . . [because] al1 reality, including the self, is socially constnicted, we have no transcendental or outside viewpoint. It follows that there can be no social criticism and no critical consciousness. Change can take place only as slow evolution, but not through transformation. Part of the reason why it is so difficult to define the legaI minci of a community is this difficulty of specifying critical consciousness, living as we do in the short nin and given that we can look only to slow evolution and not to crystallired evenl iinked to identifiable causes.

'Verry Eagleton, The Illusions of Postrnodemism (Oxford: Blackwell Publishers, 1996) at 73. 184 transnational capitalisms, Eagleton nevertheless praises as postrnodernism's "most

precious achievernentl' its recognition of the rnultiplicity and plurality of historically

"humiliated group~"'~- among whom he would presumably wish to include at least some of those excluded by modernism's ascription of "prematurity" in its various

permutations to al1 those incapable of individuated rational existence.

Flowing inexorably from the postrnodern indeterrninacy of the subject is a corresponding contextuality and fragmentation of meaning; it is self-evident that concepts, facts and texts take on different significances for different people, and even for the same person when viewed from another perspective or in a different

circumstance. As postmodernists, we are ironically conscious that meaning is

eclectic, provisional, immanent within particular interactions between persons, and that the multiplicity of meanings may be so great that "rneaning" rnay be absent

altogether. Even if we are persuadea that there is a "right" meaning for a specific

circumstance, we are no longer willing to assert that it can be the right rneaning, with

no other significances possible, or that this rneaning will be equally applicable even in

another apparently similar situation. Instead, we are reduced to what Derrida calls

bricolage, "the necessity of borrowing one's concepts from the text of a heritage

which is more or less coherent or r~ined"'~;a postmodern approach to law makes

cornplicitous use of modernist doctrines, because that is what is available. but may

17 Ibid., at 121

18Jacques Derrida, The Languaqes of Criticism and the Sciences of Man: The Structurakt Controversy eds. Richard Macksey and Eugenio Donato (baltimore, Maryland: Johns Hopkins University Press, 1970) at 255; Derrida, ironically enough, borrows this tem in turn from Claude LeviStrauss. employ multiple strategies and assemble them in new ways.

But lacking Hume's cheerful integrity and pragmatic acceptance of the possible. rnost of us find contingency and incommensurability too uncornfortable to live with for long. Much of what Terry Eagleton says betrays his cwn liberal humanist illusion that it still might be possible to reject postmodernisrn as a cultural phenornenon. However, one cannot help but sympathize with his insight that a hurnan being is "a creature condemned to meaning [and therefore] an animal continually at risk"lg in the absence of at least some meanings, if not the kind of unitary meaning which modernism purports to offer.

And this multiplicity and indeterminacy of meaning is the second troubling element d postmodernism for law. lndeterminacy of meaning rnakes it no longer possible to believe that modernism's scientific analysis of cases can produce objective principles to be applied in like cases, or that principles of statutory interpretation can produce neutral readings of impugned provisionsz0, or that judgment is confined within a boundaried realm of professional expertise which can

- 'veryEagleton, The Illusions of Postrnodemisrn (Oxford: Blackwell Publishars, 1996) at 73.

20'~lackletter" prescriptions for interpreting statutes do remain popular (and necessary) tools for the practice of law even in an increasingly postmodem context; see, for example, the recent publication in the Essentials of Canadian Law series by Ruth Sullivan, Statutorv lnterpretation (Concord: frwin Law, 1997), endorsed in the Foreward by Mr. Justice La Forest in strikingly postmodem ternis: Rules do not really govem, thought they undoubtedly shape how one goes about attaching meaning to legislation. The weight given to mies and other factors that corne into play in the interpretation of statutes van'es with the situation. Arnong other things, one must take account of boa the broad and specific context in which the legislation was enacted, Its intended purpose, and the ordinary rneaning of the words used. And one must also have an eye to the specialized setting in which it onginated. including Parliamentary practice and drafting conventions. Moreover, the process is informed by general social values and the specific demands of the particular matter thought to be regulated - both at the time of enactment and the time the legislation cornes up for interpretation. Central to this amalgam is a strong cornponent of cornmon sense. demand universal deference for its intellectual and moral authority. From a postmodern perspective, any circumstance in which meaning seems unambiguous and objective and neutral signals merely that the interpreter as subject is unconscious of his own prejudices; as Stanley Fish put it:

a meaning that seerns to leap off the page, propelled by its own self- sufficiency, is a meaning that flows from interpretive assumptions so deeply embedded that they have become invisib~e.~'

In fact, "postmodernism" itself (as Hans Bertens points ou?) can only be understood contextually, within the particular culture which g ives rise to particular postmodern variants which are themselves always changing. Like the postmodern subject, postmodernism conceptually is not a monolithic but a pluralist phenomenon.

And Bertens traces out the chronological development of various postrnodernisms in relation to their historical contexts, beginning as early as the 1930s and 40s and positing that different kinds of postmodernism result from the different societies which produced For example, Bertens considers Marshall McLuhan's stress on globalization and the role of the media and Northrop Frye's insistence on the erotic function of art to be aspects of Canadian postrnodernism in the 60s which attempted to deflate modernist intellectual pretentiousness, but he does not articulate any

21 Fish, Doing What Comes Naturallv, op cit., ai 258.

22 Bertens, op. cit., at 9-10.

23 Bertens considers the anti-intellectual postrnodernism of Amenca in the 1950s which gives rise to hedonistic 60s counterculture as rejection of meaning altogether; the simultaneous focus on ordinary public Iife in British postrnodernism; the influence of European existentiaiism on international struckiralist and deconstructivist postmodernism in the 70s; and the increasingly eclectic inclusiveness of postmodernism in the early 80s. But although Bertens lis& al1 of the "big names" associated with these manifestations of postmodemisrn, he is unable to provide convincing evidence of the historic and sociaI movements which he says give rise to these disparate postmodern rnovements. 187 explanation as to why these elements of postmodernism emerged in Canada.

However, he concludes, in a thoroughly modernist and dichotomous fashion and without any apparent trace of irony, that there are fundarnentally two kinds of postmodernism: those which have "given up referentiality and rneaning" and those which are "referential and sometimes even tr[y] to establish local. ternporary and provisional tr~ths."~~Although Bertensl dichotomy seems far too neat to me, nevertheless Canadian posimodernism is, I think, characteristically a referential and provisional postmodernism which draws on the referential and provisional elements of the Scottish Enlightenment philosophies saturating our culture for a century.

3. The Scottish Enlightenment and Postmodernism: Theoretical Links

Because the modernist insistence on the individual legal subject is grounded in the fundarnental normative value ascribed by modernists to rational autonomy, it is the normative element of postmodern fragmented and multiple agency as it is evolving in postmodern moral philosophy which I want to consider most carefully. But postmodern stances alert us to a necessary relationship between indeterrninacy of the subject and indeterminacy of meaning. Although a number of writers have more or less tentatively associated Scottish Enlightenrnent indeterminacy of the subject with postmodern thought, they have unfortunately had much less to Say about

Scottish Enlightenment philosophy and postrnodern indeterrninacy of rneaning. And

24 Ibid., at 47. 188 (not surprisingly) the connections set out so far have focussed on the mainstream philosophers -- Hutcheson, Hume and Smith - focussing primarily on episternological elements of their thought and placing less explicit weight on the normative elements of moral sentiment which gave rise to the lesser known cornmon sense school in the backwaters of postcolonial Canada.

For example, in A Passion for Ideas, George Elder Davie has written at some length about Derrida's interest in the concept of refiective identity set out in Hume and Smith -- conciuding, however, that Derrida ultimately rejected any concept of knowing as mutual mirroring and modification of individual self-perceptions in favour of a more empirically-based analysis of language. *' On this point. I think Davie oversimplifies Derrida. Derrida is very careful to distinguish between two kinds of interpretation, the first which he identifies as the individual's attempt to decipher events in search of specific and unitary truth, and the second which he identifies as a stance of engagement passing beyond the humanist individual or any of the reassurances of foundationalism. His point is that, as irreconcilable as they are, we live both kinds of interpretation simultaneously and that they "share the field" ; there cannot be any question of autonomous choosing between them, and indeed the concept of choice has itself becorne a trivial one. Derrida concludes that "we must try to conceive the comrnon ground" of the "irreducible difference" between these two

25 See George Elder Davie, "The Mirror Theory: Hume and Smith Against Derridan in P. Pzssion for Ideas, Essavs on the Scottish Enlicihtenrnent Vol. 2 (Edinburgh: Polygon, 1994) at 135. As noted above. Joel Handler would disagree with this evaluation of Derrida. Furthemore, Davie does not consider in this essay that this empirical language analysis may also derive from elements of Scottish Enlightenment thought; consider the tradition of empirical language analysis initiated (with rnixed degree of success) by Lords Monboddo and Kames, supra, Part 1, "Scottish Education". 189 stances, because only in so doing will giimpse "the conception. the formation, the gestation, the labor" of the new society and the new kinds of meaning which are ernerging.26 All of this is very compatible with Smith's concept of the dynamic evolution of society and the ideas he shares with Hume about the relationship between change within an individual and change within a society comprised of individuals engaged in the reflective process of constructing identities.

Working within a framework of postmodern feminist moral theory, Annette

Baier points to Hume's understanding of refiective sentiment which acknowledges the

"problem of contradiction, conflict and instability in any one person's desires, over time, as well as conflicts between pers on^"^^ as central to Humean morality defined as social cooperation. Sympathy in Hume's sense requires a rigorous moral effort of the imagination so that we not only believe in another's passions but actually feel themZ8;it is this element of morality, especially in intimate social relationships which are not always chosen and do not always involve persons who are equalZg,which

Baier considers to be missing from Kantian autonomous rationality.

Postmodern pragmatispORichard Rorty, whose work emphasizes the social

26 Jacques Dern'da, op, cit., at 264-5.

27 Annette C. Baier, "Hume, The Woman's Moral Theon'st?" in Women and Moral Theoty, ed. Eva Feder Kittay and Diana T, Meyers (Savage, Maryland: Rowman & Lifflefield, 1987) 37 at 34; for a more extended discussion of Hume by Baier, see A Proqress of Sentiments, Reflections on Hume's Tieafise (Cambridge, Massachusetts: Harvard University Press, 1991)

28 Baier, A Pronress of Sentiments, op. cit., at 165.

29 Baier, "Hume, the Woman's Moral Theorist?", op. cit., at 44

30 "Pragmatismn in this context can be defined as antiessentialism or antifoundationalism. 190 and historical constitution of individuals, considers Baier to be the "best" among the conternporary philosopher^.^' And Rorty praises Hume (whom he also links to

Derrida) as the "wettest, rnost flexible, least phallogocentric thinker of the

Enlightenment".32 The Kantian rationaiist tradition is "dying"33,according to Rorty:

"Plato got [moral] philosophy off on the wrong foot" by focussing on The rather rare figure of the psychopath, the person who has no concern for any human being other than hirnself'? What we need instead is an anti-foundational focus on the Humean

"progress of sentiments" as a sentimental education.

Jean Francois Lyotard rejected the "grand narrative", modernisrn's universal overarching story generating unitary significance with the liberal humanist subject at its centre; he famously defined 'lposfmodern as incredulity towards rnetanarrati~e".~~

And Rorty agrees, insisting that increased moral knowledge depends entirely on

"hearing sad and sentimental stories" and lots of them. This is the only form of education which enables us to understand that al1 those persons suffering outside our normal range of experience are not quasi-humans but people more like than unlike

31 1 am drawing here specifically on Richard Rorty, "Human rights, Rationality and Sentimentality" in Human Ri~hts,the Oxford Amnesty Lectures eds. Stephen Shute and Susan Hurley (New York: Basic Books, 1993) il1 at 129; but Rorty is a prolific writer. See also, for example, Philosophy and the Mirror of Nature (Princeton, 1980) and Obiectivisrn, Relativisrn, and Truth (Cambridge, 1991).

32 Ibid., at 133.

33 Ibid., at 132

34 Ibid., at 123.

35Jean Francois Lyotard, The Postmodem Condition: A Report on Knowled~etrans. Geoff Bennington and Brian Massurni (University of Minnesota Press, 1979) xxiv. 191 ourselves and therefore worthy of respect and Our moral ~0ncer-n.~~It is the myriad, apparently superficial details about their everyday passions and closest social relationships communicated through their stories which make us realize that other human beings are like us and help us see that hurnan similarities are far more important than differences."

According to Richard Rorty, quasi-human or pseudo-human are labels we apply to others to justif)! giving thern less than their due as recipients of our own moral agen~y.~~This idea is very compatible with Hutcheson's notion that rights arise out of natural benevolence and are best understood immediately and contextually in those situations of close social distance when right actions are. self- evidently, those which respect the rights of others. It is also compatible with the common sense philosophies of Reid, Stewart, Brown and Hamilton; although they approached empirical evidence from a variety of perspectives (sense perception, introspection, experimental psychology, physiology) they also concluded that persons share intuitively heid, underlying truths about human experience. These are the small scale, provisional truths communicated through multiple anecdotes - for exarnple the anguish of a Rwandan mother for her starving child depicted on a newsclip which

38 Rorty, op. cit, at 118 and 124. Ironically enough, given his belief that Freud got psychology off on the wrong foot, Rorty focuses on the pathology of the oppressed; he does not seem to take into account the possibility that our moral education also depends upon hearing the joyous and sentimental stones of others oulide our experience who are not suffering but flourishing and as such equally worthy of respect as well as (in our own best interests) ernulation. n Ibid., at 129

38 Ibid. at 122. moves us to donate to charity. In so far as we participate in an unreflective cornmunity of revealed but unchosen norms and values, it is hard to argue that we simultaneously sustain fully individuated status as autonornous rational beings, and yet we do not experience this constraint as an infringement of freedom but rather the reverse.

As a method of building the facility of sympathy towards the multiple stories we wifl share with other individuals in "real life", Martha Nussbaurn has exptored the sentimental education which she believes cm best be provided through the study of literature, explicitly crediting Aristotle and Adam Smith as the central inspiration for her postrnodern w~rk.~~Barbara Herrnstein Smith, working outwards beyond the boundaries of comparative literature and critical theory, evokes Hume as the heroic source of what she terms "contingencies of value", not only in matters of aesthetic taste but more generally in relation to the various possible meanings of moral value within a c~rnrnunity.~~In a reinscription of modernist dichotorny, Herrnstein Smith

39 Martha C. Nussbaum, Poetic Justice, The Literary Imaqination and Public Life (Boston: Beacon Press, 1995) at xvi and 72 ff. There is a strongly-developed strain of postmodem legal scholarship which look to the relationship between law and literature as a tool for the development of moral sensibility. See, for example, James Boyd White, "Teaching Law and Literature" (1994) 27 Mosaic 1; Alasdair Maclntyre discussing Jane Austen in After Virtue 2nd ed. (Notre Dame, Indiana: Notre Dame University Press, 1984) at 239-244; lan Ward, Law and Literature, Possibilities and Perspectives (Cambridge University Press, 1995); and Mark Kingwell, both in "Let's Ask Again: Is Law Like Literature?", op. cit, and in Better Livinq, op. cit. at 314 generally (Chapter 8). And we have already noted that the nineteenth century student group at Osgoode which protested the cancellation of lectures called itself the LegaI and Literary Society.

40 Barbara Hermstein Smith, Continqencies of Value. Alternative Pers~ecüvesfor Critical Theorv (Cambridge: Harvard University Press, 1991) at 56-73. She considers Hume to be heroic because he was willing to "do battle with despair and impotence" that is inevitably associated with skepticisrn and the impossibility of detemining any fixed validity of extemal standards. Particularly interesting is Hermstein Smith's expansion of ttiese ideas in her more recent work, Belief and Resistance, Dvnamics of Contemporarv lntellectual Controversv (Cambridge: Harvard University Press, 1997). especially in Chapter 5 at 73 and following. In this work, Hermstein Smith moves beyond literary theory to moral philosophy more generally, looking at the relationship between Hume and Foucault, Derrida, Rorty and Lyotard to refute the incoherence of relau'vism and skepticism. As she points out (at 77): concludes that Humean skepticism is necessary to belief and that the two can exist only in reciprocal implication:

That is why the adversarial embrace of Skeptic and Believer rnay indeed be eternal. . . It appears to be out of the endless dance and clash of skepticisrn and belief that al1 knowledge emerges: that is, al1 the particular theories, contingent clairns. contestable judgments, local discourses. and provisional practices that we generate through the very process of living in an irremediably sublunary wor~d.~'

Although it is true that Canadian philosopher Charles Taylor has on occasion written dismissively of po~tmodernisrn,~~a persistent theme in Taylor's work is a

if someone rejects the notion of validity in the classic (objectivist) sense, what follows is not that she thinks al1 theories (and so on) are equally valid, but that the thinks no theory (and so on) is valid in the classic sense.

41 Herrnstein Smith, Belief and Resistance, op. cit,, at 122-3.

42 See, for example, Charies Taylor, The Malaise of Modemitv (Toronto: House of Anansi Press, 1991) ("Malaise"), in which (at 37) he invokes a metaphor of a background "horizon" of intelligibility, against which he juxtaposes an ideal of diversity comprising "authenticity", defined (at 66) as "openness to horizons of significance and self-definition in dialogue, demands in tension, no simple privileging of one over the other"; Taylor then adds (at 48): the popular 'postmodern' variants of Our day, which have atternpted to delegitimate horizons of significance, as we see with Demda, Foucault, and their foliowers, are indeed proposing deviant forms [of authenticity]. The deviancy takes the form of forgetting about one whole set of demands on authenticity while focussing exclusively on another. See also Charies Taylor, Sources of the Self, the Makinci of the Modem ldentib (Cambridge University Press, 1989) ("Sources"), where he writes: the need for an escape frorn the restrictions of the unitary self has indeed become an important recumng therne in this century, and afl the more so in what is sornetirnes referred to as 'post-modernism' as we see in one way in Foucault's attack on the disciplinary or the confessing self, and in another way in the work of Lyotard (at 463); and:

for Derrida, there is nothing but deconstruction . . . Nothing emerges from his flux worth affirming, and so what in fact cornes to be celebrated is the deconstructing power itself, the prodigious power of subjectivity to undo all the potential aliegiances which might bind it. . .A philosophy which supposedly negates subjectivity, self-possession and full presence and which sees thought as perpetually dispersed and 'deferred' in a field of infinite substitutions also exalts the indefinite freedom of play, and presents itself as a liberating doctrine. (at 489-90, note 90) Rorty would sirnply reply that Taylor fails to understand Demda, whom he considers (as much as Hume) to be a moralist and not a 'dangerously frivolous iconoclast'; supra, note 26 at 133 and 248); the passage from Derrida which I cited above in relation to the discussion of George Elder Davie would, I think, confimi very postmodern notion of the multiplicity of construction of hurnan identity:

The general feature of human life that I want to evoke is its fundamentally dialogical character. We become full human agents, capable of understanding ourselves, and hence of defining an identity, through Our acquisition of nch hurnan laquages of expression. . . . We are expected to develop our own opinions, outlook, stances to things, to a considerable degree through solitary reflection. But this is not how things work with important issues, such as the definition of Our identity. We define this always in dialogue with, sometimes in struggles against, the identities our significant others want to recognize in us."

Taylor explicitly acknowledges that his concept of the dialogic self derives from the notion of intuitive moral sense as it is embedded in social institutions through moral refiection, ideas which he has examined closely in the philosophies of Hutcheson and

Hume in particular." He says of Hume that '9he end of self-exploration is not disengaged control but engagement" and that Hume's skepticism is "meant not to induce a kind of epistemic despair but to lead us to discover and accept Our limits"; moreover, he consider Hume's ideas to offer 'the gerrn of an issue which cornes more naturally to formulation in Our centurymi45 _- an issue, I would argue, that is best

Rorty's interpretation,

?aylor, Malaise, op. cit., at 33. See also, "The Politics of Recognitionn ("Recoqnitionn), supra Introduction, note 22 at 32-4: The crucial feature of human Iife is its fundamentally dialogical character. . . . thus my discovering my own idenu'ty doesn't mean bat 1 work it out in isolation, but that I negotiate it through dialogue, partly overt, partly intemal, with others. That is why the development of an ideal of inwardly generated identity gives a new importance to recognition. My own identity crucially depends on my dialogical relations with others.

44 See Sources, op. cit. at 259 and following on Hume and at 343 and following on Hutcheson; see also "Recognition", op cit. at 28 where he again reiterates the importance of the "eighteenth-century notion that human beings are endowed with a moral sense, an intuitive feeling for what is right and wrong" which he credits here to Hutcheson.

45Sources, op. cit., at 345 and 347 note 44 expressed in the profoundly moral multiplicities of some postmodern stances.

Given Taylor's rejection of the rational autonomous Kantian self, it is not surprising that he also rejects the Kantian concept of negative liberty, which he considers to be lacking in common sense because it fails to acknowledge that some of the barriers to freedom, generated by the multiplicity of conflicting desires experienced by the fragmented and divided self, are inevitably ir~ternal~~- a stance very similar to the Humean concept of individual contradiction and instabilmQnoted by

Baier. And although Taylor makes no reference to George Paxton Young (and may very well not be familiar with his rather obscure writings) what he says on this topic is compatible with Young's solution to his spiritual crisis, in which he had sought to reconcile common sense collective moral agency with Calvinist doctrines of duty and predestination. The agent's "inner perspective", said Young, gives him the illusion that he is free to act in accordance with the precepts of an equally incomprehensible external ideal, so that despite the fact he is always constrained by the limitations of his own experience what he experiences simultaneously is, pragrnatically speaking, enough freedom.

Of contemporary Canadian philosophers, the academic currently enjoying the greatest popular success (postmodern style) is probably Mark Kingwell, whose analysis of ideology we have already considered and whose recent philosophical

46 See Charies Taylor, "What's Wrong with Negative Liberty", in Philosophv and the Human Sciences (1985) 213-219, reprinted in Law and Moralitv: Readinqs in Leqal Philosophy, eds. David Dyzenhaus and Arthur Ripstein (Toronto: University of Toronto Press, 1996) 266 at 267, 271 and 273. 196 meditations on contemporary culture - Dreams of Millennium and Better ~iving~?--

have been widely reviewed" and publicly acc~airned~~.These extremely anecdotal and informal works reveal plainly that Kingwell is thoroughly at home dwelling amidst

postrnodern coniingencies of meaningM but, interestingly enough, he seems to be

47Op- cit Kingwell is an assistant professor of philosophy at University of Toronto who has, despite a remarkable record of publications and much to his fiankly expressed chagrin, had been unable to obtain a tenured position in academia until the spring of 1998. In this light, his postrnodem blumng of the professional and the amateur by invoking everyday experience to transgress the boundary between the academic and the popular press can be considered both as continuation of the tradition of the Scottish Enlightenment scholar and a pragmatic solution to what was a prolonged situation of job insecurity.

48 See, for example, Patrick Watson, "Forget your troubles, c'mon get happyn (Globe and Mail, April 18. 1998) for a largely laudatory review of Better Living which nevertheless finds Kingwell's work "embarrassingly confessional" and criticires him sharply for failing to discuss Christian concepts of agape which are, in fact, largely irrelevant to Kingwell's study-

48 See, for example, a Ietter from Karen Mohindra of Ottawa to The Books Editor (Globe and Mail, May 17, 1998) at Dl2 in which Mohindra responds to the Watson review, pointing out the connection between Kingwell's approach and the Canadian tradition of common sense philosophy: The public enjoyment and practice of philosophy has been largely buried in North Amenca for the past century by self-imposed scholarly insularity. Before philosophy became a professional and wholly technical discipline, rnodefled on the new scientific methodologies, the cultured elite of English Canada sought guidance from philosophers such as John Clark Munay and James Beaven. I believe Kingwell is a better public philosopher than his Canadian predecessors, because he provokes thinking about contemporary values without moralizing.

50~ingwell,between these two works, discusses such disparate ephemera of contemporary culture as religious cutts, tattoo and body piercing pariours, television, movies old and new, music videos, the Intemet, university education from the perspective of the disenfranchised junior academic seeking tenure, and the psychotherapy and parapsychology movements - al1 without prescriptions or predictions for the shape into which our culture is evolving. And Kingwell, in the Augustinian tradition of confession with which he must be thoroughly familiar from his Winnipeg Catholic education, participates in many of these experiences and details his personal responses. He attends at the Option lnstifute in Sheffield, Massachusetts and joins the group personal-development sessions to see if the organization can achieve its promise of making its clients happy; he takes Prozac; he steals a journal article from his departmental library; he describes his participation as paid expert in a sleazy marketing study intended to determine the consumerist triggers of Generation X purchasers. Ail of this is compatible with the Scottish Enlightenment stress on the engaged spectator whose introspective experience, reflected back to him, is the route to knowledge (although sornetimes an inversion of the Anstotelian notion of virtue in action). Kingwell offers an intriguingly contemporary, populist spin on Watson's insistence that his students respond to original te* in philosophy through aggregation of varied individual responses; his work is both enormously readable and increasingly widely read by an audience which does not usuatly interest itself in scholarly philosophy. 197 rnuch less ready to acknowledge postmodem rnultiplicities of personal identity.

An admirer of Charles Taylor and pam'cularly of Taylor's Sources of the Self

(which he calls "magisterial"') Kingwell has defined himself not as a postmodernist but as a "contextual liberal". He advocates a concept of justice as civil dialogue, the

Aristotelian middle path that best integrates individual difference and community self- interpretati~n~~through the virtue inherent in the action of talking. Our commitrnent to civil dialogue (literally "civil", in the sense of a politeness which goes well beyond superficial manners to encompass a genuine commitrnent to the interests of others) means we place a high value on living together in a manner that rnakes it possible for a variety of persons to achieve their own visions of what is a good life for them as individuals. To achieve this multiplicity, we are (and pragmatically must be) willing to

"sacrifice the goal of seeking the whole tr~th"~~sometimes by not saying al1 that we know and on other occasions by keeping a tactful distance. But this does not lay us open to charges of insincerity because we can be "sincerely insincere" - sincere in

Our commitment to the genuinely shared political community which we know we wili al1 lose if we insist too single mindedly on the bluntness of truth. So far, these ideas are not dissonant with, for example, Clark Murray's common sense understanding of

51Mark Kingwell, A Civil Tonnue: Justice. Dialoque, and the Politics of Pluralisrn (University Park, Pennsylvania: The Pennsylvania State University Press, 1995) at 4 note 2). This book, originally formulated as Kingwell's Yale Ph.D. thesis, is considerably more formal in tone than the later works, in keeping with the modemist ideology of schofarship as disengaged professional analysis, and yet still full of an irrepressible intellectuai energy and interdisciplinary curiosity.

52 lbid at 15.

53 lbid. at 223. 198 the interactions and perpetual inversions between individuals and social tendencies as both causes and effects in the formation of collective social character.

But this is where a contradiction emerges in Kingwell's thought, resulting from the disjunction between his rnatter-of-fact acceptance of the multiplicities of meanings and his relative resistance to the multiplicities of hurnan identities. What is supposed to sustain public civility is individual cornmitment to cornmunity, but it is not clear how this can be conceptually possible when cornmunity (according to his account) does not enter into or participate in the construction of individual identity. Although he fiags this problem as endemic to the "thin" definition of the liberal selp, Kingwell may simply fail to give enough weight to the difficulties we al1 have. as individuals. in fully determining our individual interests and identities in so far as those interests shift and change in relation to the various communities and personal relationships in which we participate. Recall, for example, Lyall's stress on the unknowability and plurality of emotions as motivators for moral behaviour.

And this is also the very problem which Kingwell reveals, with disarming candour, that he faces in his personai life as he attempts to reconcile his interests in pursuing an acadernic career with his respect for his wife's desire to pursue her own independent academic career (of necessity, in the current job market, in different cities) and his fears that prolonged separations will result in the end of their marriage? The identities of "husband", "wifet' and "academic" inevitably conflict

54 Ibid., at 236

55See Better Living, op. cit., at 273. Of course, it is possible that the increasing success of Kingwell's writing career may resolve at least the financial elements of this dilemma. when determinations of interests and identities are made individually rather than communally. particulariy where a liberal cornmitment to individual identity demands

(as a existential condition of authenticity) that identity be determined in this way.

But if the goal of public life is to permit individuals to pursue their own visions of the good life and civil dialogue is a means to that end, it is still nevertheless self- evident that the pursuit of individual self-realization cannot be an absolute goal;

Kingwell's amusing and acerbic accounts of the various venues he explores within the instant psychotherapy economy reveal his clear understanding of that truth. Kingwell also knows that what we want most as private individuals is "eudaimonistic happiness" -- a concept derived from Aristotle which is closely related to his notion of the practical wisdom of phronesis and virtue in action - and that this is not mere hedonistic pleasure, but a rational sense of satisfaction with one's character and behaviour on the whole; happiness is an integral element of virtue, and virtue can be experienced only in active relationship with ~thers.~~

But Kingwell, unfortunately, confuses what is the ongoing ethical task of each individual (to seek out and recognize eudaimonistic happiness by making meaning from the multifaceted incidents of human existence) with the task of pursuing a unified life and a unified identit~.~~He has set hirnself up a dichotomous "fork" of

57 Ibid., at 156: When it comes to eudaimonistic happiness (the rational satisfaction with one's character and actions), the matter of happiness's strong link to the individual person is even more obvious. To conceive happiness eudaimonistically is to depend, implicitly, on the rneaningfulness of the concept of a unified life and the actions and character that go into shaping it. We cannot we happy in this deeper sense unless we are whole in person and we cannot be whole in person unless we have confidence that the project of seeking an 200 preciseiy the kind which he elsewhere rejects? There is a middle path conception of identity (neither fully autonomous and individuated nor completely contingent) which is more compatible with Kingwell's middle path analysis of ideology.

It is not the case that we either have unified lives or no meaningful control over human identity. On the contrary, an introspective awareness of human experience suggests that each of us is comprised of shifting and overlapping constellations of persona1 identifiers of character and behaviour depending upon the particular context requiring and evoking response. Certain identifiers may be more persistent than others, but perhaps none can be identified with certaine as core identifiers absolutely central to a particular individual's identity. Similarly, some of these contexts evoking identifiers are pursued or chosen and others - including even intimate relationships, as Baier notes -- result from experience outside Our control (the "happenstance" etymologically implied in the concept of happiness). A civil actor engaged in public dialogue must sometimes sacrifice or tactfully suppress the whole truth; an individual actor engaged in personal reiationships must sornetimes rnodify the single-minded pursuit of the vision of what he thinks he wants to be (hero of the narrative he simultaneously atternpts to author) in order to live intimately with another perçons.

What is within our control in seeking out identity is, once again. the sincerity

(sometimes a sincere insincerity) with which we engage in the reciprocal or

identity beyond the necessary but insufficient continuity of memory and body is, in some large measure, within Our control. I have to be confident that I am a person, in other words, before I can begin to think about whether 1 am a happy person.

58See, for example, "Let's Ask Again: Is Law Like Literature?" op. cit., at 318 and following. communal process of self-definition. We cannot be rationally satisfied with our character or behaviour otherwise; this process is what constitutes eudaimonistic

Kingwell has written scholarly works about the Scottish ~nlightenrnene'and

about cornmon sense6', but he does not explicitly connect Scottish Enlightenment

multiplicities of self2 and of rneaning with postmodern thought or with his own ethical project. That may be because he dismisses postrnodernism's multiplicities of

meanings to be little more than a "cultural grab-bag [which] gives up al! pretensions to the critical ~tance'"~and also because he still retains a very considerable residual

59 Mark Kingwell has read an earlier draft of this section of the thesis and discussed it with me both in a telephone conversation May 25, 1998 and in a note helpfully faxed to me on June 3, 1998. He very kindly supplied me with an unpublished paper written eady in 1998, "(Stop) Making Sense of the Millennium: Politics and Culture at the End", together with permission to quote from it. ln this paper, Kingwell modifies somewhat his concept of the liberal individuated self, defining the person in relation to twin characteristics of bodily integrity and memory and arguing (at page 23) that "the desire for transcendence is built into ail human aspirationn. We need to stop attempting to make sense in terrns of conceptual structures (including, presumably, those modemist concepts of the liberal and individuated subject) which have become obsolete in a postmodern society. However, it is also his evolving position, more fully developed in a short and article entitled "The Future of Intimacy" 111 Maclean's 22 (June 1, 1998) 60, that this desire for transcendence coexists with a longing for immanence and connection, and that intimate knowledge on the part of any individual is generated through an interplay between inward and outward experience which takes into account relationships with other people. Professor Kingwell informs me that he intends soon to write at greater length on these subjects in relation to Wittgenstein's concept of identity.

60 Mark Kingwell, "Politics and the Polite Society in the Scottish Enlightenrnentn(7993) 19 Historical ReflectionsIReflexions Historiques 3 363.

61Mark Kingwell, "The Plain Tmth about Common Sense: Skepticism, Metaphysics, and Irony" , op. cit.

62 In fact, in "(Stop) Making Sensen, op. cit, at note 13, Kingwell criticizes David Hume's concept of human identity, saying that Hume "argued (. . . incorrectly) that perçons were simply bundles of perceptions, with no identity beyond thatn. It seems to me that Hume's understanding of the multiple and shifting construction of identity (as set out in Part II of this paper, and more fully explored by Baier, Rorty, Herrnstein Smith and Taylor, infra, is more complex that Kingwell suggests.

63 Kingwell, A Critical Tonrrue, op. cit., at 173 202 liberal cornmitment to individuated identity. However, in his discussion of the concept of politeness as a moral category derived from the Scottish Enlightenrnent, Kingwell does consider the mutuality of the construction of human identity. He looks to

Joseph Addison's Spectator essays, considers the etymology of the word "polite" as derived from "polish" - which implies that human beings in social interaction smooth off each other's rough spots and then reflect each other's behaviour - and points out that Adam Smith's moral psychology (the concept of the mirroring spectator we have already considered) develops this concept further.

And in his analysis of common sense, Kingwell distinguishes between "plain" common sense and philosophical common sense. He says. quite rightfy. that Reid was mistaken in thinking that common sense can be a 'Yirm category" rather than the

"mass of contradictions" which it has to beyshifting with prevailing ideologies. Like

George Brett's dynamic pluralism, which stressed the impossibility of knowing anything except in relation to other facts and objects of experience which are also in a continuous process of definition and redefinition, Kingwell's concept of common sense shifts with prevailing ideologies. "It is only by dispensing with the very desires for completeness and certainty about our knowledge that the grounds for doubt can systematically be removednM he suggests, but without making the further connection that we must also dispense with the desire for completeness and certainty rnost especially about Our own identities in order to cease to doubt our capacity for virtue as civil dialogue or virtue as eudaimonic happiness.

64 "The Plain Truth", op. cit, at 183. 4. Postmodem Ethics: Dissolving Academic Boundaries

Despite this overview of ethical theorkts who have acknowledged their debt to the Scottish Enlightenrnent, it has to be acknowledged that there is a great deal of interesting work ongoing in the field of postrnodern ethics in which these connections are not made. At any rate, to make essentializing daims would be fatally unpostmodern: even though it may have predominated in Canadian cultural history and Canada has subsequently been identmed as a postmodern society, Scottish

Enlightenment thought is clearly only one arnong many multiple sources of postmodernisms. And cross-cultural postrnodernisms of moral contingency derived frorn rnany such sources are currently permeating many fields of academic study.

Given that it was the aim of the Harvard case study method to legitimate the academic study of law by making it a science, we might anticipate that science as the epitorne of rational rnodernity would be the academic field most resistant to postrnodernism. That is the view put foward, for example, in a recent book by renowned biologist Edward O. Wilson in which he marshals the arguments for

"consilience", a unified theory of knowledge uniting the sciences and the h~manities.~~However, there are a number of other recent studies in the field of

65 Edward O. Wilson, Consilience, The Unitv of Knowledse (Alfred A. Knopf: New York, 1998)- The best known of those atternpting to create scientific TOE holds on knowledge is probably Stephen Hawking, whose much-purchased 1988 study A Brief Histow of Tirne which sets out his "theory of everything" is discussed by Wilson at 263. For Wilson's views on postrnodernisrn see pages 40 to 44, where he quotes from Demda and Foucault to define postmodemisrn as anarchic deconstruction which "menaces rational thought", although he concludes rather optirnistically that postrnodemism may serve a useful function as a hostile force which aferts scholars to the need for strengthening of organized knowledge. It is interesting, however, that Wilson also argues (at 126-7) that the central problem of the sciences and the humanities is to understand "the deep genetic history of the species as a whole" in relation to "recent cultural histories": science which suggest that current scientific research both rejects and supports a postmodern concept of the indeterrninacy of human indi~iduality.~~

Perhaps al1 that can be concluded to date is that scientific postrnodernisms are not always a hoaxm6' Anthropologist Michael M.J. Fischer has surveyed the large and growing body of postmodem interdisciplinary scholarship which explores connections between various sciences and the story-telling tradition of autobiography, noting that the motivating force behind much of this literature is the search for multiple moral meanings to replace the unitary significance once sought in modernism:

The result of multiplicity is not (as Alan Bloom fears) the undermining of knowledge, but the increase of purchase on truth and knowledge, by identifying the sources of uncertainty, the limits of particular angles of vision, and by triangulating thern together. . . The multiplicity some people fear as destructive of traditional pieties is not a pandering to irrationalities of postmodern irresponsibility; on the contrary it is ever more a feature of the contemporary condition, of rationality, and of grounded positions of critique that allow understanding (and perhaps

"Culture is created by the communal mind, and each mind in turn is the product of the genetically structured human brain", he writes, a passage cuflously congruent with the KnaflaIBinnie approach to the historiography of legal pluralisms.

66 For a recent study of the scientific evidence that much of individual human personality is the product of genetic predetermination (and not rational choice, in the modernist tradition), see Dean Hamer & Peter Copeland, Livinq With Our Genes ( Doubleday: New York, 1998). And for a philosophical analysis of the concept of consciousness based on scientific evidence that individuated consciousness is an illusion and not the essential core of the human entity, see Tor Norretranders, The User Illusion: Cutting Consciousness Down to Sire, trans. Jonathan Sydenham, (Viking, 1998)' reviewed by Jim Bartley, "What is this thing calIed 'I'?" [Globe and Mail, May 16 1998) at Dl6 and 010, where Barüey quotes Norretranders: It is self-reference which is the problem. The body cannot lie. Its bandwidth is too high for that. But the I Gan. In fact, the 1 can do nothing else. The I refers to itself as if it were the Me. But it is not, The I simulates being the Me, having controt of the Me. But the 1 is just a map of the Me. A map can lie. A terrain cannot '1 am a lia? is not a Iiar paradox. It is the truth about consciousness.

67 Supra, Alan Sokal's article on postmodem physics, Introduction note 25 social reconstruction) to ad~ance.6~

We have already considered at some length the impact of postmodern theory on legal history, and history more generally is the other modemist discipline which was most insistent to assert the "factness" of facts until it was transformed by postmodem impulses into pluralist historiography. Dominick Lacapra's short essay.

"Rhetoric and History", provides the same kind of survey for postmodernism in history that Fischer offers for postmodernism in science, demonstrating conclusively what we have already seen: that because selection determines what is included for preservation, even a documentary record itself is not 'unprocessed' before the historian cornes to it? This is a topic more thoroughly explored by Herrnstein

Smith, who recommends we recognize that the "knowledge-constnicting or belief- securing" activities of history are sometirnes ineffective when "it turns out that the historical documents, experimental findings, and certified authorities are less substantial. more ambiguous, or more cornpromised than we had previously supposed"." In either version, resulting from this recognition is an implied moral

68 Michaei M.3. Fisher, "Autobiographical Voices (1,2,3) and Mosaic Memoryn from Autobiocira~hyand Postmodemism, ed. Gilmore (University of Massachusetts Press, 1994) at 103 and 123. Fischer provides an extensive bibliography of postmodem scientists, citing in particular Donna Harraway's survey of perspectives in science and arguing that autobiographical works by scientists Hideki Yukawa, lrene Fischer, Rita Levi-Montalcini and by philosopher of science Karl Popper (among others) are al1 integral to an understanding of their purely 'academic' work.

69 Dominick Lacapra, "Rhetoncal Historyn in Histow and Criticism (Comell University Press, 1985) 14 at 35 and more generally on rhetoric. Unfortunately, Laccipra dues not provide as useful a bibliography as does Fischer, although it is possible to trace his sources through his footnotes.

70See Belief and Resistance, op. cit., at 34 and more generally Chapter 2, "Making (Up) the Truth" at 27 and following where Hemstein Smith discusses in depth the relationship between history and postmodem theory. Hemstein Smith provides a spirited rejection of historian Gertrude Himrnelfarb's contention (set out in On Lookinq lnto the Abyss: Untimelv Thousht on Culture and Societv (New York: Knoff, 1994 at 155) that postmodemist history celebrates aporia and has brought mankind to the abyss of 206 duty of care in selection and a duty of consciousness of personal biases in processing. And Lacapra's account, although it makes no reference to the Scottish

Enlightenment, is also particularly helpful because of its focus on textual rhetoric within documentary records. Rhetoric, we recall, interested a number of the common sense philosophers and can best be understood in relation to Aristotelian analysis because selection of rhetorical style entails phronesis, an aspect of virtue in action .?'

This rebirth of interdisciplinary approaches even in science and history

(unacceptable and intellectually fraudulent as they may seem within the modernist cult of expertise) is familiar to us from the amateur scholars of the Scottish

Enlightenment; also familiar is the reemergence of moral sentiment as an element of human cognition which (said Aristotle and Charles Taylor) can never be eradicated for long. But we need to narrow our focus to the relationship between postmodern ethics and law; it will probably suffice to sarnple two of the mosf prominent theorists in this field, comparing a piece written over a decade ago by D~cillaCornell with a more recent work by Boaventura de Sousa Santos.

Cornell's "Reconstructing ~thics"" is an enormously scholarly account which surveys the literature of postmodern moral philosophy quite generally, but focuses in

nihilism.

71Supra, Part II, Thomas Reid" at notes 49 and 50.

72Drucilla Comell, "Toward a Modern/Postmodem Reconstruction of Ethicsn (1985), 133 U. Pen. L.R. 2 291 particular on the neoAristotelian theories of Alasdair Maclntyre and Roberto ~nger~~ and the implications of these approaches for law. Cornell points out that, ideally. "to think like a lawyer is to engage in the kind of rational discourse to which Aristotle referred as phr~nesis''~~because the relationship between precedent and the case at bar ought to be a reciprocal and flexible linking of the universal and the partïcular, rnodifying each. However, practical rationality as an element of human cognition had instead become "foreign to the liberal mentality"75;the universalizing sweep of

Kantian instrumental rationality omits any emotivist thought and subsumes the particular in the universal.

Her account of Unger is detailed and largely sympathetic. Cornell considers him to be a postmodern in so far as he "wants to give us an ethic that accepts plurality rather than insisting on consensus"76 but criticizes Unger for what she considers an excessive romanticism in his later work which abandons his ethic of intersubjectivity in favour of a reassertion of the modernist individuated self."

73 Comell focuses her discussion on Alasdair Maclntrye's After Virtue: A Studv in Moral Theow 2nd ed. (Notre Dame, Indiana: University of Notre Dame Press, 1984). and on howorks by Roberto Unger, Knowledqe and Politics (New York: The Free Press, 1975) and Passion, an Essav on Personality (New York: The Free Press, 1984).

74 Ibid., at 306-7

75Ibid.

78Ibid., at 356

TIIbid., at 358. Cornell writes: The eariy Unger was right to seek to uncover the conditions in which value judgments could be given weight. In his new work, he has abandoned mis effort, looking instead to a redemptive vision of live. But if his new vision is incomplete as a result, it does serve as an eloquent reminder of romantic possibility. Unger never lets us lose sight of the hope that in our very search for redemption we wilI find ourselves redeemed. He prods us to recommit ourselves to the effort to change the world. 208

Cornell is, on the whole, more dissatisfied with what she considers to be

Maclntyre's abandonment of liberal autonomy and eq~ality~~which she argues is not a realistic possibility in the historic and social context in which we live. It is interesting, however, that Cornell omits any mention of Maclntyre's sustained absorption in the philosophy of the Scottish ~nlightenrnent~',that historical epoch in philosophy which was itself so strongly infiuenced by, and influential on. social context. She fails therefore to understand why it is that Maclntyre is able to criticize certain aspects of the Enlightenment (Kantianism, in particular) while simultaneously

Unger's work is postmodemly "unacademic" and makes almost no explicit reference to the writing of other philosophers, but his analysis of the dialogic and moral role of ernotion is strikingly similar to that of Reid and Brown, and even more like Lyall (the obscure Nova Scotia common sense philosopher whose work he could not be expected to know). See, for example, Unger's discussion of vanity in Passion (op. cit.), at 195 and following: Vanity is the surrender of self-esteem to the opinions of other people. Each individual must wrestle with a paradox of dependence. He needs other people's acknowledgernent of his being and worth if he is to develop a picture of himself, an assurance of his capabilities, and a grasp of his limitations. The easiest way to obtain this acceptance is to think as others think and to act as they act; indeed, beyond a point of tolerated deviation it is the only way. Yet the more a person delivers himself as a hostage to the views of others, the more he is seized by an apprehension of the arbitrariness of his own identity and worth, based as they are upon the shifting and conventional preconceptions of his fellows. To assuage this fear, which touches the very center of his being, he must seek more and more the narcotic of approval. The cure worsens the disease. To be vain is to give up hope of breaking this addiction. Lyall understood this problem well. He resolved it (provisionally) tilirough rational reflection on emotion which enabled him to choose appropriate public actions, confident these would meet with the approval of a supreme being whose existence was intuitively self-evident as unconditioned reality.

78Ibid., at 327

79 Maclntyre published David Hume, Ethical Writinss (New York: Collier, 1965; there are multiple references not only to Aristotle, but aiso to Hume and Smith in After Virtue, op. cit, Maclntyre has continued to draw on his interest in Scottish Enlightenment philosophy in works written after the 1985 Comell study; there are multiple references to Hutcheson, Hume and Smith in Whose Justice? Whose Rationalitv? (University of Notre Dame Press, 1988) as well as in Three Rival Versions of Moral Enquiry (University of Notre Dame Press, 1990). 209 calling for "more meaningful community lifedO in the tradition of Hutcheson and

Hume and Smith.

Cornell's own "solution" for the problem of postmodern nihilism and moral relativism proposes a relaxed Hegelian boundary between the individual and the community as "constitutive and yet nonidentical with the self?" She proposes a dialogic concept of the self and a blurring of the boundary between universality and particularity which will redefine rights, not as individual assertion of negative liberty or entitlement but rather as "participatory rightsWa2-- an idea which (as Maclntyre certainly knew) Hutcheson had proposed a century and a half earlier. And Cornell concludes, somewhat mysteriously, that "there are reasons for making the cornmitment I advocate, although they are not instrumentally rational reas~ns."~~It is not at ail clear, however, from Cornell's account what these reasons might be, other than the instrumental reason of recreating citizenship as a civic virtue -- again, a value which Hume and especially Smith had already established to the fore.

The title of Boaventura de Sousa Santos' recent book, Towards a New

Common sensea4,promises and delivers an interdisciplinary approach to the issue

80 Ibid., at 324. This section of Cornell's paper is entitled, "Macintyre's Ambivalent Attitude Toward the Enlightenrnent".

81 Ibid., at 360 and following; Comell here acknowledges her debt to Michael Sandel's 1982 work, Liberalism and the Limits of Justice.

82 Ibid., at 374.

83Ibid., at 380

84 Boaventura de Sousa Santos, Toward a New Common Sense: Law. Science and Politics in the Paradicimatic Transition (New York and London: Routledge, 1995). Santos has a dauntingly thorough familiarity with the history of Western philosophy, as the copious references within this thick book dernonstrate very convincingly. 21 O of moral multiplicity across the academic boundaries of law. science and politics. The title also createç a hope, at least in the context of this study, that the book will reveal some farniliarity with the cornmon sense doctrines of Scottish Enlightenrnent philosophy, but instead Santos laboriously creates his own definitions of postmodern common sense without reference to the earlier traditiod5

In an earlier paper, "Law: A Map of Misreading". Santos had argued that modernist iaw deliberately misread and distorted reality in order to combat relativism and to sustain its centralizing authority to apply precedent to a particular constellation of facts: "law creates the reality that fis its app~ication"~~,he wrote. In that paper,

Santos proposed that the three concepts key to a postmodern view of law are legal pluralism (defined as the superimposition and interpenetration of different legal orders within a single poiitical space); interlegalify, by which he means a dynarnic and porous intersection of these different legal systerns in relation to a specific legal issue; and legal common sense, which he conceives as a democratization and popularization which will result from the '"triviahzing of our daily encounters with the

85 Santos does make fleeting reference to the Aristotelian origins of common sense in science (at 12) and offers an extended discussion of Aristotelian rhetonc as a forrn of knowledge compatible with postmodem theory (at 40 through 44). He invokes Adam Smith (at 69 and 41 1-2) but presents only the standard rnisinterpretation of Smith's economic theories. There is an interesting and provocative discussion of "prudent knowledge" (at 26), which however makes no reference to Smith's concept of prudence but proposes that prudence is a post hoc bulwark against episternological chaos which enables us to know what is at stake only after it has becorne an issue. But there is no reference to Hume, although Santos' concepts of causation could be illuminated through consideration of Hume, and no mention at al1 of Reid, Stewart, Brown or Hamilton.

88 Boaventura de Sousa Santos, "Law: A Map of Misreading, Toviard a Postmodem Conception of Lawn (1 987), 14 J. Law and Soc. 3 279 at 288. laws so that their meaning becomes clear to the untrained law user".87

lronically enough, given dernocratization is Santos' avowed project, his writing is very much in that postmodern school of hermeneutic jargon which is alrnost impenetrable. When translated, he proposes three new kinds of common sense: an ethical comrnon sense of solidarity as responsibility for the future which does not, however, symmetrically impose duties in reciprocity for right~~~;a political common sense of participation which will aim at expanding politics beyond the "citizenplace" into collective global lifeag;and an aesthetic common sense of "re-enchantment" which will reinfuse pleasure into both scientific knowledge and into ordinary, everyday experience as a suitable subject for a non-elitist art integrating the beautiful and the usefu~

It is Santos' theory that capitalism dernanded the modernity and "statism" of law-as-science as a route out of the social chaos which created it?' Together, argues Santos, the three kinds of common sense will comprise a t'postmodern

07 Ibid., at 298-299; note 71 at 302. Santos is here thinking about the daily contact ordinary people have with Iaw in reading the newspaper or watching newscasts, and the role for a popular sociology of law as a source of "edifying knowledgen (a term he borrows from Rorty) which will encourage the critique and refom of existing state IegaIity requisite before law can becorne an unqualified human good. This essay is more or less repeated as a chapter of the same title, containing the same definitions at 473, in Toward a New Comrnon Sense. However, Santos does specify that this fragmentation of postrnodern legality is not chaotic because each of the three elernents has "an interna1 coherence", and because state law remains politically central even within a "polycentric legal worldn, retaining some authority to determine "what is and what is not lawn.

88 Ibid., at 50

89 Ibid., at 51

80 Ibid., at 52

91 Ibid., at 56. By chaos, Santos is here presumably refemng to the industrial revolution, the rise of rnercantilisrn and social revolution as precursor of rnodernism, although he does not Say so. 21 2 ernancipatory kn~wledge"?~This knowledge is an essential precondition for what

he considers to be a new sociocultural paradigm ernerging out of the outmoded

capitalism of modernity. Although Santos does not expand upon or define this

paradigm, it is possible to imagine that law could benefit from the ethical and political

and even the aestheticg3variants of common sense as Santos has set them out.

And it is also not difficult to see that Santos' concepts of common sense were

anticipated in Hutcheson's benevolence. With social distances increasingly shrinking through technologie^,^^ Rorty-style ordinary stories can be widely and intimately disseminated directly into homes on a global basis; there is new hope for redemption from the horrors of unbridled self-interest which appalled Adam Smith.

Q2Ibid., at 53-4.

%is aesthetic application of common sense to law is the biggest stretch. and Santos does not help us, but it might satisfy the displaced impulse to aesthetic pleasure in law derivable from the postmodemly- challenged formalist symmetry described by Emest Weinrib, or the equally challenged "seamless web" described by positivist Ronald Dworkin,

04 In his earlier paper, Santos focussed on newspapers and televisions, where stot-ies are necessan'ly mediated through writers and editors. Newer technologies such as e-mail will, as costs come down and more and more persons gain access to them, present rapidly expanding opportunities for unrnediated and reciprocal exchange of personal stories. Potentially, these technologies couid shnnk back to size Hutcheson's "social distancentwo centuries after the alienating effect of late eighteenth century colonial mercantilism which, in Smith's own opinion, crippled the invisible hand of his economic theory and rendered it incapable of harmonizing personal and public interest as it had done in the more intimate society of Enlightement Scotland, One might optimistically predict that access to electronic communication ought to be able to demonstrate that many cultural differences worthy of respect and protection need not detract from the human empathy which is the engine of moral action as people come to understand how human emotional responses are similar everywhere. Kingwell, however, is not optimistic about the potential for the enhancement of ethical or political development via the lnternet because he reluctantly agrees with Plato that people too often do not know what is in their own best interests; see Dreams of Millennium, op. cit., at 135. 213 When Santos defines cornmon senseg5, his blurring of cause and intention is unconsciously Humean; his stress on practical action invokes Aristotle; his avowed preference for anti-intellectualisrn and conservativisrn reminds us of the shared abilities and the intuitively shared beliefs of the neoAristotelian common sense philosophers whose ideas helped stabilize nineteenth-century Canadian society through an assertion of the common ground of multiple rationalities. What is extraordinary, given the enormous breadth and reference contained within this almost

500-page text, is that Santos does not seem to have been aware how much of this postrnodern territory which he is engaged in mapping out had already been surveyed in a manner which he would have almost certainly found thoroughly satisfactory.

85 Ibid., at 47: Common sense collapses cause and intention; it rests on a worldview based on action and on the principle of individual creativity and responsibility- Comrnon sense is practical and pragrnatic. It reproduces knowiedge drawn from the life trajectories of a given social group, and asserts that this link to group expenence renders it reliable and reassuring. Cornrnon sense is self-evident and transparent . . Common sense is superficial, because it disdains structures that cannot be consciously apprehended, but, for the same reason, it is expert at capturing the horizontal complexity of conscious relations, both among people and between people and things. Comrnonsense knowledge is nondisciplinary and nonmethodical. It is not the product of a practice expressly devised to create it; it reproduces itself spontaneously in the daily happenings of life. Cornmon sense favours actions that do not provoke significant ruptures in reality. Common sense is rhetorical and rnetaphorical; it does not teach, it persuades or convinces. Finally, common sense. . . fuses use with enjoyment, the emotional with the intellectual and the practical.

These characteristics of comrnon sense hold the virtue of foreknowledge. teft to itself, common sense is conservative. However, once transfomed by postrnodem emancipatory knowledge, it may be the source of a new rationality - a rationality comprised of multiple rationalities. PART VI

CANADIAN LEGAL POSTMODERNISMS

1. The Unbearable Postmodernity of the Project

In 1991, when Costas Douzinas and Ronnie Warrington published Postmodem

~urisorudence',it met with a rather mixed re~ponse.~Originally prepared for

performance at a conference, in its written forrn their study attempts to create a

postmodern experience through an experimental stnicturing which juxtaposes multiple texts3 simultaneously; the whole might, in fact, be considered a prophetic illustration of Santos' concept of interlegality. Through this multiplicity, they seek to demonstrate the cornplexity of the problems of determinacy and responsibility in legal decision

making. The finished work is both an audacious tour de force and, at points, as

1Costas Douzinas and Ronnie Warrington with Shaun McVeigh Postmodem Jurisprudence. the law of text in the texk of law (London: Routledge, 1991)

2For reviews, see Philip Leith, "Postmodem Jurisprudence" (1992), 43 N. lreland Legal Quarteriy 1 at 88; John T. Valauri, "Postmodem Jurisprudence" (1992), 103 Ethics 1 at 209; and B.S. Jackson, "The wisdom of the inessential" (1992), 12 Legal Studies 102.

3~ackson(op. cite,at 116) identifies as these texts: the survey of postrnodem theory with which the work opens, quite conventionally; the Biblical story of Jephthah from Jud~es10; a response from the legal profession to a U.K. governrnent green paper on access to the courts; correspondence among law lecturers and the editor of a law journal with reference to an article on Melville's Billv Budd; further correspondence between a lawyer and a Iiterary expert on a breach of copyn'ght action brought by a student; and various unidentified and ephemerat notes on the general topics of linguistics and philosophy of language, al1 more or less unified under the theme of "suspended sentencesn, a concept explored for its literal and metaphoric meanings. Valaun dismisses the book as offering Iittle to the discussion of jurisprudence; Leith rejects the book's obsession with text, "prefers to stick to conünuity of intellechial experience" and considers postmadern jurisprudence to be as insubstantial as postmodem architecture; But Jackson (who makes a valiant attempt to understand it) concludes that the book is "a remarkable achievement -informative, stimulating and entertaining, the very antithesis of the doctrinal fast food genre of legal scholarship". 21 5 indeterminate as the process it describes?

My introduction warns that this paper constitutes only a preliminary study of

Scottish influence as one source of Canadian legal postmodernisms. I have variously: suweyed Scottish immigration to Canada; introduced concepts of legal pluralism and considered briefly eighteenth century Scottish political history, law and education; examined Scottish philosophies of moral sentiment and common sense in greater (but still superficial) detail; speculated about the effect of Scottish culture and philosophy on nineteenth century Canadian culture and legal education; explored the reasons for the relative absence of a Canadian history of legal theory; attempted to describe the amorphous relationship between modernity and postrnodernity; expanded and refined my provisional definitions of postmodernism, distinguishing referential and nonreferential postmodernisms; and set out various approaches to the development of postmodern ethics -- sorne which acknowledge Scottish

Enlightenment antecedents and others which do not.

But unlike Douzinas and Warrington, I have not adopted this multiplicity of approaches out of some self-referential policy which compels postmodern enactment, nor am I entirely convinced that Santos' mapping metaphor is the appropriate one for my project. Instead. it is Michael Fischer's multiplicity of triangulation, identifying the sources of uncertainty and the limits of particular angles of vision, which best expresses what 1 am about here. If Canada is a postmodern state, and if our law is

'Elut this may be inevitable; Pierre Schlag. in "Missing Pieces: A Cognitive Approach to Lawn (1989) 67 Texas L-Rev. 1195 at 1209 argues that almost al1 Iegal texts are "polymorphously perverse" and constructed of "dissonant cognitive frameworksn. 216 evolving accordingly in postmodern directions, I am interested in examining Canadian law and Canadian legal theory as a shifting zone of convergence of these multiple sources and phenomena. My signpost flagging multiple pathways for future exploration simultaneously signifies where "here" is, and where variously we may have corne from to get here.

2. Exemplary Postmodernists: Coornbe and Hutchinson

Even though Fischer commends postrnodernism for identifying sources of uncertainty, there is a good deal to be said for beginning this section of an already tenuous project with whatever certainty is available. And, as I noted in my introduction, two Canadian legal scholars who have been bravely willing to identify thernselves as postrnodernists are Rosemary Coombe and Allan Hutchinson.

Like Douzinas and Warrington, Coombe has sustained a particular interest in intellectual property and copyright law; she has also written articles incorporating theoretical postmodern stances peripherally in relation to ferninist issues, aboriginal issues or legal history and sometimes, in postmodern fashion, blurring these arbitrary categories of legal scholar~hip.~For example, there is a Coombe paper with the

5See nAuthorial Cartographies: Mapping Proprietary borders in a Less-Than-Brave New Worldn (1966), 48 Stanford L. Rev, 5 at 1357; "'The most disgusting, disgraceful and inequitous proceeding in our law': the action for breach of promise of mamage in nineteenth-century Ontario" (1988), 38 U.T.L.J. 1 at 64; and "The properties of culture and the politics of possessing identity: native claims in the cultural appropriation controversy" (19931, 6 Can. J. of Law and Jur. 2 at 249. 217

very promising and postmodem title, "Contesting the ~elf"~,which constitutes a fairly typical example of what I have tentatively defined7 as the Risk-generated genre of

Canadian legal history. The introduction offers a few paragraphs of postmodem

analysis of the legal subject, but the body of the paper focuses on various archival

sources - judge's benchbooks and newspaper reports - to reconstruct nineteenth

century Ontario social attitudes about defamation and their transformation. Coornbe discusses trials of working class men who lost their jobs because of libel or slander and of women whose reputations were sullied because of accusations of inchastity.

but without any attempt to reproduce the cultural context of the era. There is no

explicit reference to the Scottish Enlightenment traditions which permeated that society at the time and which gave rise to the Calvinist work ethic and the rather rigid

sexual morals which the legal processes she describes sought to protect. However, the conclusion opens up again into a more explicitly theoretical vista, suggesting that

Coombe would welcome the kind of legal history project contemplated by Knafia and

Binnie which seeks to evoke a comrnunity's state of mind more generally:

a more complete account of the political progresses of constructing subjectivities than could be attempted here would trace categories of self, character, virtue, identity, duty, privilege and the public good over a much longer period of tirne. It would then be possible to determine the junctures at which these categories emerge and decline, and the struggles in which alternative self understandings evolve, gain form, presence and volume, challenging and transforming existing modes of representation and ultimately, perhaps acquire legitimacy. Difference, however, is always emergeni, and as scholars of law and society we

6 Rosemary J. Coombe, "Contesting the self: negotiating subjectivities in nineteenth-century Ontario defamation trialsn (1991) Studies in Law, Politics and Society Annual at 3

' Supra. Part IV 21 8 must always be attuned to the murmurs from the rnargin.'

On several occasions Coombe has written at greater length in a more explicitly theoretical vein. Because we have just been examining Santos' attempts to formulate

a postmodern ethics through his theories of postmodern common sense as

ernancipatory knowledge, and because it is my theory that Canadian postrnodernisms

belong to what Bertens calls the referential and provisional rather than the

nonreferential school of thought, Coombe's theoretical critique of Santos offers a

particularly useful jumping-off point for our discussion of Canadian postmodernism.

"Finding and Losing One's Self in the Topolmgwas Coombe's response to

Santos' presentation of one chapterl* of Toward a New Common Sense at the June

1995 meeting of the Law and Society Association which was held in Toronto. She focuses her discussion on Santos' examination of the postmodern legal subject. It is

clear, however, both that Coombe would wish to go a good deal further than Santos

does in decentering the postmodern subject, and that Coombe finds particularly

suspect the sociohistorical locations of the frontier, the baroque and the south which

Santos proposes as metaphors for his postmodern emancipation;

When I address this postmodern subject, 1 want to be sure that 1 am not speaking to "Man", that unelected representative who speaks "universally" for "human kindn.ll

8 Ibid., at 39

9 Rosernary J. Coombe, "Finding and Losing One's Self in the Topoi: Placing and Displacing the Postmodem Subject in Lawn (1995) 29 Law & Soc. Rev. 4 at 599.

10 Boaventura de Sousa Santos côlled this version of Chapter 8 "Three Metaphors for a New Conception of Law: The Frontier, the Baroque, and the South* (1995) 29 Law & Soc. Rev. 4 at 569.

11Coombe, op. cit., at 601 Coombe considers al1 of these well-meaning metaphors to be deeply stained by the unconscious associations which Santos bnngs to them from his particular subjectivity as it has been constructed out of his experience as a male member of a white colonizing society. As a woman and a feminist, Coombe offers a constellation of competing meanings. For her, the "frontier" is associated with the hubristic and expansionist myth of white men colonizing and consuming "empty" spa~e'~;the

"baroque" evokes a carnivalistic atmosphere irnpregnated with the potential for racism and grotesque debasement13; and the "south" signals a modernist Northern

Eurocentrism which sexualized and enslaved other continents in "an erotics of ra~ishment".'~None of these tropes communicates emancipation for her.

Coombe is partially but perhaps not fully aware that (to borrow Fish's phrasing) her own interpretive assurnptions are as deeply embedded as Santos' and deployed with equal disregard for her own positions of relative privilege.15 Moreover, although she accuses Santos of latent modernity in his selection of these particular metaphors to define the postmodern subject, she herself lapses just as inevitably into modernity when she contemplates a postmodern subject with the "ability to adopt a dis~lc~i~~~~ositionin~~by choice. Coombe concludes, pragmatically, that the 13 Ibid., at 607

15 Supra, Part V note 20 and Coombe, ibid., at 607. For example, 1 am also a wornan and a ferninist, but rny past career as an art history instmctor means that I bring very different associations to the word "baroquen than does Coombe.

16 Ibid., at 606. This is, of course, not a criticism of Coornbe; that postrnodemism cannot be dichotornously separated off from rnodernisrn but instead ernbraces it - whether inevitably, complicitously or unconsciously - is a concept which is discussed at considerable (and probably excessive) length in this paper. subject (modem or postrnodern) cannot be entirely eliminated. What she finds consoling is the notion that it can be challenged, to which she adds a normative irnperative: it should be challenged. But only "a politics of nonidentity, a polity of noncomrnunity, and an ethics of openness to contingency" can "put the subject at risr; she seeks a constant transformation and fluctuation of the subject through

"dialogic encounters with alterity".17 What will result from this continuous (and very

Humean) phenornenological reconstructing of the self will be a focus on the social practises that Coombe believes ought to be the project of postmodernism, and this

"ought" signals strongly that Coornbe positions herself within the school which holds that postmodernism cm ofTer more than moral relativisrn.

In an earlier paper18, Coombe had commented at some length on CorneIl's postmodern reconstruction of ethics, endorsing and adopting her dialogic concept of the self while seeking to go beyond "abstract assertions about the nature of subjectivity and objectivity to examine concrete practices of self and world

If Ibid., at 607. The footnotes to Coombe's work reveal her acknowledged debt to Mikhail Bakhtin [1895-19751, a Russian philosopher working in the areas of language and Iiterature who is best known for his theories of dialogisrn and heteroglossia. Bakhtin proposed that the utterance is the basic linguistic act, but that utterances acquire meaning only in dialogues between individuals who are also situated in particular social and cultural conteps and whose own selfhood is simultaneously constructed and reconstructed ttirough multipIe dialogues. Coombe cites Bakhtin's works The Dialonic Imasination and Problems of Dostoevskv's Poetics (in translation). I do not know whether Bakhtin was familiar with Humean phenomenology, but Hume's works were well known in Russia and influenced a number of other philosophers (induding S.L. Frank, Nicholas Lossky, George Plekhanov and Vladimir Levin) working prior to Bakhtin in Russia. See also Oxford Cornpanion to Philoso~hv(Oxford: Oxford University Press, 1995)

18 Rosemary J. Coombe, "Objects of Property and Subjects of Politics: lntellectual Property Laws and Democratic Dialoguen(1991) 69 Texas L. Rev. 1853; repnnted in Postmodernism and Law ed. Dennis Patterson (Aldershott: Dartmouth University Press, 1994). 221 ~reation."~~But the real subject of this paper is the postrnodem indeterminacy of meaning. Like Terry Eagleton, Coombe defines postmodernity in association with the "dramatic restructuring of capitalism in the postwar periodlr2' and the cultural practices characterized by mass consumption. She considers consumerism to have encouraged the "proliferation of mass media imagery" as t'signification without social meaning'? Battered by thousands of commercial messages which deny us any opporkinity of meaningful response beyond the decision to purchase or not to purchase, and with Our freedom of expression unduly constricted by excessively rigid copyright law which protects commercial interests at Our expense, we are in danger of losing that reciprocity which is essential to the perpetual dialogic reconstructions of

Our selves.

It is difficult to read this account without being reminded of Adam Smith's revisions of the Wealth of Nations and the Theorv of Moral Sentiments in the 1770s, affer he had experienced at first hand the self-interest of London merchants in pressuring the British governrnent to pursue war with the colonies in order to secure markets for their manufactured goods. Smith was interested in the political reality that collective economic forces affect the pursuit of individual human happiness and the moral implications of that reality which also variously preoccupy Eagleton and

20 Ibid., at 283

21 Ibid., at 284

22Ibid., at 285 222 ~ingwell'~and Coombe. He believed. even then, that the social distance from nation to colony had become too attenuated to rely any longer on the immediate sympathy of moral benevolence guided by propriety and prudence.

However, the technological developments which have made possible

Coombesstransmission of mass media imagery are exactly the same developments which have shmnk the social distance between Eagleton's historically humiliated groups and brought about their recognition within "mainstream" culture to such a degree that the notion of a mainstream is now itself an anachronism. And Coombe is more hopeful than Eagleton about the possibility of sustaining meaning-making as a human activity and more confident that some rneanings remain fixed even though others are in constant flux;24 within her referential postmodernism, there is still some room for foundationalisrn, although she does not specify which are the meanings

(perhaps the meaning of meaning itself?) to sustain such status.

Coombe had begun this paper with an intriguing quotation from Michel de

Certeau: "Marginality is becorning uni versa^"^^. Within Canadian legal institutions, this universality of marginality has been firmly established since 1982 through the

~harte?~and its associated jurisprudence, and one of the most perceptive

23 See Better Livinq, op. cit, at 224.

24 Ibid., note 156 at 302. Coombe, like Hume, remains essentially optimistic whereas Eagleton is characteristically sunk in pessimistic gloom; their contrasting views of capitalism are similar to the postrnodem debate in architectural theory initiated between Charies Jenks (supra, Introduction note 8) and Frederic Jarneson, and Coombe refers to Jarneson's seminal work, Postmodemism, or the Cultural Logic of Late Ca~italisrnat 284 note 55.

25 M. de Certeau, The Practice of Evewdav Life trans. S. Rendall, 1984 at xvii

26Supra, Introduction note 7. commentators about this phenornenon has been Canadian postmodernist Allan

Hutchinson. I want to discuss in some detail Hutchinson's contribution to the creation of a characteristically Canadian postrnodern ethic. However, it may be useful first to think about the Charter as a postmodern ~tatute~~which is both a product of a postmodern society and a catalyst with the potential to further transform Canadian society in postmodern directions.

We can identify the inherent tension between postrnodernity and modernity in the Charter by contrasting those provisions which constitute and mandate its postmodern marginality and multiplicity with its pervasively liberal content of rights- talk. Our Charter has become identified with Canadian national feeling; as an ideology or interpretive theory, it has the ability not just to recapitulate existing comrnunity noms but to educate the cornrn~nity.~~But Charter interpretation and application, as Hutchinson regretfully points out. has been dominated by the central rnodernist vision of individua~isrn~~and Our ideology, correspondingly, seems to be

n I am setting up this conceptual framework in an attempt to illuminate Hutchinson's theories; Hutchinson himself does not explicitly contemplate that the Charter is a postmodem statute incorporating modemist elements.

ZbBat law, in general. has this dual function is a point made by Kingwell in "Let's Ask Again: Is Law Like Literature?", op. cit., at 331. And although he does not explicitly make the connection, we have already seen that this analysis is key to Adam Smith's concept of the rolling evolution of the law in relation to society.

28~llanC. Hutchinson, Waitinq for Coraf, A Critique of Law and Riahts (University of Toronto Press, 1995) generally, and specifically at 13 and 91. "Coraf" is an anagram of "Charter of Rights and Freedoms" and the title of this work is, of course, a play on Beckett's Waitins for Godot; Hutchinson contends that our society's expectations of what the Charter can do for them as individuals will never be achieved so long as individuals are encouraged to wait passively for rights to shower down upon them, rather than engaging in their reciprocal responsibility as citizens to change society and to change the law. Hutchinson's work is typically enriched by his allusions to a wide range of cultural phenomena which go well beyond the "Iaw and literature" framework. increasingly fixated on rights rather than re~ponsibilities.~~

In what ways can the Charter be considered a postmodern statute? Even a preliminary answer to that question would itself constitute a lengthy study.3' but we can sketch out a provisional response in relation to Our two guiding concepts, the postmodern subject and the postmodern fragmentation of meaning. The Charter protects fundamental freedorns of conscience, religion, thought, belief, opinion, expression, peaceful assembly and association". It recognizes mobility right~~~, guarantees fundamental justice and due process in criminal proce&ingsM, and asserts a right to equaliiy without discrimination based on race, national or ethnic origin, colour, religion, sex, age or di~ability.~~It acknowledges the rights of English and French groups to use of their language and to education in that language within geographic areas of Canada where they are rninoritie~'~.And it is cornrnitted to the

30 Hence the popularity of recent publications such as Know Your Rinhts and How to Make Them Work for You (Montreal: The Reader's Digest Association (Canada) Ltd., 1997), which offers instant expertise for laypeople seeking to make rights daims usefully illustrated with charts, sample complaint letters and "tnie to life scenariosn. More encouraging is the 1997 initiative of the State of the Worid Forum at which former world leaders (including Jimrny Carter and Pierre Trudeau) drafted an International Charter of Responsibilities alrnost fi@ years after the United Nations Dedaration of Hurnan Rights; see www.arq.co.uk/woddfonim/new/3.html.

31 I have discussed this topic at grestter Iength in "Postrnodemism: It Oughta Be Against the Law!" and again in "Bertha Wilson: Postmodem Judge in a Postmodem Time", unpublished papers written in 1995 and in 1996.

32 Charter, op. cit., S. 2

33 Ibid., S. 6

34 Ibid., S. 7-14

35 Ibid., S. 15

36 Ibid., ss. 16-23 225 protection of aboriginal peoples" and to our multicultural heritage".

Who is the legal subject protected through these provisions? It is clearly no longer the neutral, universal and objective proxy of the liberal humanist individual, who Coombe and many others suspect was always a "Man" anyway. The substantive content of these provisions unmistakeably participates in the liberal humanist tradition of "rights-talk" -- deplored by Hutchinson because it encourages a perception of "rational, self-interested and pre-socia~"~~subjects, and reduces democratic citizenship to "the right to have right~".~' Nevertheless, these Charter provisions simultaneously evoke a multiplicity of decentered and fragmented postmodern subjects al1 clustered at the margins, and from this constitutionalized multiplicity of legal subjects cascades a necessary fragmentation and contextualization of meanings which is producing a potentially revolutionary postmodern legal ethic.

Borrowing from Rorty, we can see that the Charter requires that we stop considering persons who are different from us in a multiplicity of ways to be quasi- humans; they are more like than unlike us, they desire the same freedoms and rights we do, and the law requires us to acknowledge and to respect that sarneness.

Borrowing from Santos, we can see that the Charter also makes possible a dynamic

37 Ibid., S. 25

38 Ibid., S. 27

30 Ibid., at 97

40 Ibid., at 214 226

vision of "interlegality" through a porous intersection of these enurnerated categories

as "complicated and cornpeting considerationsW4'which would generate the

"provisional, revisable and contextual"" jurisprudence Hutchinson recommends.

But Hutchinson claims that the court's interpretation of the Charter's precise

and modernist enurneration of categories has instead tended to set up an adversarial

clash of rights. There is no principled guideline to deterrnine the scope and nature of

rights, which entities are to be recipients of rights, or when individual or collective

claims to rights should take pri~rity.~~The Charter's deliberate omission of economic protections (including those basic guarantees of basic food and shelter for the poor without which the enurnerated rights and freedoms are meaningless") and the court's subsequent refusal to read in these econornic protections illustrate a

lingering liberal humanist bias in favour of individuated self sufficiency which is not

politically neutral. This bias has. so far, worked against the recognition of

intersecting human rights in reciprocity with the freedorn that can only exist in human

41 Hutchinson's phrase, ibid., at 106; Hutchinson is here writing about the abortion debate in relation to the Supreme Court decision in Morgentaler, and points out that traditional rights taik is a "zero-surn game" where "what is given to one can only be taken at the expense of another".

42 Ibid., at 226

43 Ibid., at 29

44 Ibid.. at 36. Kingwell makes a simitar point in Better Living, op. ciL, at 69, when he discusses the psychotherapy rnovement as a cult designed prirnarily for the fulfilment of a middle class whose basic needs for food and shelter within Maslow's hierarchy have already been amply satisfied; they now seek urgently to acquire happiness, as though eudairnonic happiness (what Maslow called self-actualization) is similarly purchasable and achievable once and for all. comrn~nities.~~

What elements of the Charter articulate a postmodern indeterminacy of meaning? A thorough response to this question would first of al1 require examination of the jurisprudence surrounding the "notwithstanding" clause4? This provision permits a province to declare that an act of its legislature will operate for five years and can be renewed even if it is in contravention of the Charter guarantees, despite the supremacy clause4' which asserts that the Charter is the supreme law of the land. How universal is a supreme law which always has the potential of being overridden regionally, curbed only by the political reality that to deny citizens' rights is inirnical to chances of re-election?

45Ibid., at 206. These points are made with equal force in relation to Canadian human rights codes more generally by Michelle Falardeau-Ramsay, Chief Commissioner of the Canadian Human Rights Commission, in the 1997 annual report. See Margaret Philp, "Rights Commissions Failing to Stop Abuse, Report Says" (Globe and Mail, March 25, 1998) at A6. For Canadian legal scholar Nitya lyer, the insistence in hurnan nghts law on the definition of equality protection through rigid categories of enurnerated characteristics simply "fails to comprehend complex social identities" where numerous differences based on gender or race of class or disability may intersect. Those in positions of hierarchical authority assume in the very act of categorizing what constitutes difference that there is some neutral norm, a norm which generally confoms to their own aggregated characteristics As a result, other etegories of expenence which are significant to those being categorïzed but not apparent to the categorizers become obscured and invisible. See lyer, "Categorical Denials: Equality Rights and the Shaping of Social Identity" (1994) 19 Queen's L.J. 179 at 180. See also Andrews v. Law Societv of 8ritish Columbia, [1989J1 S.C.R. 143 at 152-3 per Wilson J. for a rare acknowledgement of the potential of the court to expand its recognition of discrete and insular minorities beyond the enumerated grounds contained within the Charter.

46 Charter, op. cit, S. 33 and Ford v. A.G. Quebec, [A9881 2 S.C.R. 712. See also M. Mandel, The Charter of Riqhts and the Legalization of Politics in Canada (Toronto: Wall & Thompson, 1989) at 75 and following for a discussion of the protest in the legal community to S. 33 when it was first proposed. Hutchinson notes, op- cit., at 18, that in contrast to the American system, our S. 33 "removes the courts' conclusive veto over legislative authority" and permits reversal of judiciaf decisions over constitutionality "by something much less than a constitutional amendment".

47 Constitution Act, 1982, op. cit., S. 52 (1); not technically part of the Charter 228 The jurisprudence associated with the remedies provisions48and their intersection with the supremacy clause provide another locus for postmodern contextuality and indeterminacy of meaning. The court can exercise a very flexible range of potential sanctions to remedy legislation or government action which is found to be unconstitutional. including exclusion of irnproperly obtained evidence, stays of proceedings, awarding of damages. granting of injunctions and declarations of invalidity of statutes (in whole or in part, immediately or prospectively, to give

Parliament time to redraft offending legislation).

And the constitutional even allows the court to declare that a particular law will remain in effect if striking it down would disadvantage the majority of citizens who rely upon it, while specifying that it will not apply to a specific individual whose Charter rights are infringed because of his particular situation. This provision, not very often used because it unambiguously permits an unelected court to usurp the legislative function, stands as a paradoxically postmodern paradigrn of the a bsolute non-a bsolutism of Canadian constitutional law.

But of al1 these Charter provisions requiring attentiveness to the contingency of values, Hutchinson is most interested in the opening section of the Charter; S. 1 specifies that the guarantees of rights and freedoms are subject "to such reasonable

48 Charter, op. cit., S. 24. See also Schacter v. Canada, [1992] 2 S.C.R. 679 in which Chief Justice Lamer set out guidelines establishing a contextual analysis to determine whether or not severance of the offending section of the statute is possible, the extent of interference with parliamentary objectives which would result, budgetary implications if underinclusive legislation is extended and infringernent of imputed parliamentary intention by reading in of extension to excluded groups.

48 Charter, op. cit., S. 52 (2); see R. v Chief (1989). 39 B.C.L.R. (2d) 358 (B.C.C.A.) limits prescribed by law as can be demonstrably justified in a free and democratic s~ciety"?~He argues that this section, through the application of the 0akes5' test and the prolific jurisprudence which has been built up around it. "has corne to represent the importance of comrnunitarian considerations in the institutional articulation of rights ta~k".~~One might Say Oakes stands for the postrnodem principle that absolute rights cannot exist, and that rights must always be determined within the context of the facts of the case and the purposes of the relevant legislation.

And if it is true that, in cases subsequent to Oakes, the stringent contextuality of the test has been somewhat re~axed~~,this development in turn might be characterized as another paradoxically postmodern signal that even the denial of the absoluteness of rights is not absolute.

But Hutchinson is sharply critical of the Oakes test, which he calls "woefully vague and indeterminate" and "more a conceptual curtain behind which the poiitical

50 Charter, op. cit., S. 1

51 R. v. Oakes, [1986] 1 S.C.R. 103; the reverse onus provision of the Narcotics Control Act was challenged on the grounds that it infïinged the Charter S. 11 (d) right tu be presumed innocent until proven guilty. Then-Chief Justice Dickson asserted that Charter rights cannot be absolute "in circumstances when their exercise would be inimical to the reaiization of collective goals of fundamentai importancen. The regulariy-cited Oakes test determines that, to be saved, the impugned iegislation must embody a pressing and substantial objective, fundamental to Our existence as a free and democratic society; that there must be proportionality between the legislative rneans chosen and the objective to be achieved; and that this proportionality must demonstrate a rational connection between means and objective, a minimal impairment of the freedom or right in connection and a balancing of the effect of the legislative measure against the objective to be achieved.

52 Hutchinson, ibid., at 18.

53 See, for example, R. v. Butler, [1992]1 S.C.R. 452, a case which defined freedom of expression in relation to Criminal Code sanctions against pomography. Sopinka J. for the court weakened Oakes to a "substantial concem" test with a "sufficiently rational linkn between the sanction and the legislative objective, based on evidentiary submissions that hancan result to women and children from violent and degrading pomography. dancing can take place than a choreographic script for the direction of such

rn~ves."~~One might well ask why, if Hutchinson advocates postmodern

approaches to adjudications5and to ~awyering~~.he objects to the inherent and jurisprudential indeterminacy of section 1. What worries Hutchinson (and Adam

Smith would agree) is the necessarily political assumption that the social consensus

underlying these cornmunitarian values can be crystallized in a self-applying test.

Social consensus - as an aspect of ideology, or common sense - is situation-

specific and evolving; after all, it is a breakdown in social consensus which results in

litigation, as Hutchinson points out. Furtherrnore, policy always drives legal

interpretation, which rneans both that rules can never be killy predeterrnined and that

their application in any particular instance is potentially fluid."

Hutchinson's theoretical roots lie in the highly politicized and left-wing C.L.S.

movement5'; Linda Hutcheon considers postmodernisms to be characteristically

resistant to politicizations9. But although postrnodernisms are apolitical if by

politicization is meant subsurnption within a particular political agenda, any ideal of

55See Allan Hutchinson, "It's All in the Game: Toward a Non Foundationalist Account of Adjudication", unpublished paper delivered at University of Toronto Law School Legal Theory Workshop (October 2, 1996)

56See Allan Hutchinson, "Calgary and Everything After: A Postmodem Revision of Lawyering" (1 995), 33 Alta L.R. 4 at 768

57 Coraf, op. cit., at 50 and 71.

58See, for example, Dwellinq on the Threshotd: Critical Essavs in Modem Leqal Thouqht (Toronto: 1988)

59 Linda Hutcheon, The Politics of Postmodernism (London and New York: Routiedge, i989) generally and at 152. political neutrality is itself a myth of modemism. We are inevitably enmeshed within political structures. because there is no vantage point outside politics from which to

"do law". Hutchinson's most interesting contribution to this debate is his theory of a postrnodern democratic poli tic^^^ through which he seeks to sustain postmodernism's characteristic contestability and negotiability; he would agree with

Kingwell that citizenship in a postmodern polity is not a received status but is a continuing responsibility to make the best of the situation for oneself and otherg6' and adds that "the determination of legal meaning is not only contingent and conditional, but also involves an inevitable taking of si de^."^^ Even though an objectivist jurisprudence is not possible, we are not therefore lirnited (in modernist dichotomous fashion) to an alternative of bad faith subjectivist adjudication reflective only of purely personal ~hoice.~~

Like Hume or Herrnstein Smith, Hutchinson identifies himself as a strategic

60See AIlan C. Hutchinson, "Inessentially Speaking (1s There Politics After Porno?)" (1991) Mich. L. Rev. 1549, in which Hutchinson answers this question with a resounding Yes" and pays particular tribute to postrnodem feminists Martha Minow and Mary JO Frug. Hutchinson's theory here has close affinities with Kingwell's concept of the civil dialogue, but KingwelI does not seem to be familiar with his work.

61 Hutchinson. "Doing the Right Thingn Toward a Postrnodern Politics" (1992), 26 Law & Soc, Rev. 773 at 780

64~amen,op. cit.. at 26. See also 'Calgaryn, op. cit.. at 769, where Hutchinson writes: "there is no necessary contradiction between theoretical loyalty to a postmodern perspective and the practical implementation of a radical political agenda". In support of this principle he offers an often-cited paper by another of the rare breed of avowedly Canadian legal postmodemists, 'The Big Fear: Law Confronts Postmodemismn (1990) 35 McGiII L.J. 507 by Alan Hunt.

03Coraf, op. cit., at 73; Hutchinson considers David Beatty's critique of Supreme Court jun'spmdence (in, for example, Beatty's Talking Heads and the Supremes: The Canadian Production of Constitutional Review (Toronto: Carswell, 1990)) to be a condemnation of the "whole judicial enterprise". Beatty's vision of the Charter as encapsulating transcendent and self-evident truths of Iiberal hurnanist doctrine entails his concIusion that the judge knows what he ought to decide and (when in error) has made a delibemte decision out of personal preference to deviate from that self-evidently right decision. skeptic who believes sirnultaneously that no theofl is valid and that this refutation of vafidity does not entail nihilistic relativi~rn~~.Like ROI-^^, Hutchinson veers in the direction of antifoundationalisrn, but prefers to cal1 his stance "non- foundationalismt', adopting skeptical good faith and an Aristotelian middle path of

64 Ibid., at 73 and at û4; Hutchinson cites Aristotle's waming in the Politics that a person who asks law to rule is seeking an escape from the democratic responsibiiity of making difficult decisions rather than engaging in the painfui exercise of phronesis.

65Supra, Part V note 44. In "the Big Fear", op, cit, Alan Hunt expresses the same idea this way: What 1 have termed "The Big Feaf is a reaction which adopts a catastrophic scenario in which any concession to contingency or any retreat from the objectivity of knowledge- claims necessarily leads, via the associated imagery of the "slippery slope", unwittingly, but unavoidably towards the abyss of relativism and its even more dangerous associate, nihilism. This nihilism is both a generalized loss of belief in the prevailing social order leading to the denials of claims to objectivity and an insistence on the contingency of al1 values, . . . Nihilism is conceived as catastrophic because it seems to deny the possibility of cognitive, ethical or moral judgment as anything more than subjective preference of conventional consensus. If "one opinion is as good as another" the project of scholarship itself seems to be doomed if the opinion of the fool is as valuable as that resulting from painstaking study. If "anything goes" it becomes impossible to distinguish between a moral judgement and self-interest- If there is no means to consûuct an argument which makes it "bette? or "strongef than another then al1 judgementç, whether legal, political or moral, are arbitrary, and arbitrafiness is a step along the road to either anarchy or tyranny. Kingwell, in "Let's Ask Again: Is Law Like Literature?", op. cit, at 334, also deals with the problem of nihilism in law generated by pluralist approaches through analogy to literature: That there is one answer in law does not mean that it is the right answer; and that there is no right answer in literary criticism does not mean that there is no answer. In short, it is not nihilistic to claim that al1 rneanings are practice-based. The theoretical task is to show how that meaning is generated, and which features among the many possible ones are considered, by practitioners, to be relevant. What Kingwell (who is not a lawyer, but studied law in the context of political philosophy at Yale with Bruce Ackerrnan) may not fully consider is the reality that law is adversarial and a lawyer as advocate for his client will be less interested in the theoretical task of dernonstrating relevance than in the persuasive task of encouraging the judge to buy into the client's version of the facts. Parties to a lawsuit are not necessarily nomatively committed to a "transcendental-pragmatic anticipation of agreement in communication" (at 342) but rather interested in seeking repose, preferably by winning. However, as Kingwell points out, even though theory may not by itself alter practice, a theory to which we are committed will alter how we view the outcome of practice (at 350) because it is possible to win without thinking that we ought to have won. A comrnitment to theory is not locked into a tight relationship with practice, but means that we are still attempting to "get it right" even though we cannot determine in advance through theory how questions ought to be answered (at 351).

68See Allan C. Hutchinson, "Reading/Rorty/Radicallyn (1989). 103 Harvard L.R. 555; Hutchinson here calls Rorty an nepistemological maverick" and defines his antifoundationalism with the rnemorable phrase, "history goes al1 the way down" (at 555-6). 233 liminal cognition situated variously on the spectrum between objectivism and subjectivism. The good judge acknowledges that he is neither free nor restrained.

Kingwell points out that "an exhaustive set of rules for a practice is a logical impossibiliv; Hutchinson would agree, and Hutchinson's judge quite frankly inhabits the rules which he must apply. bringing his own values as he inevitably must to the act of judging, and understanding that the act of judging always involves "a shifting multiplicity of competing games". But within the constraints which are imposed by law he is himself always open to surprise and to change68, a very

Humean recognition of the slow and incremental power of experience in constituting and reconstituting and transforming both the individual self and the political and legal systems in which he is situated. And the good judge is also a master of rhetoric, able through her stylish panache not merely to persuade people that she got it right but, if necessary in the interests of justice, to change their understanding of what right is in that particular situation. It is not the case, as Hutchinson memorably puts it, that anything goes but rather that anything might gd9

Hutchinson's game metaphor infuses moral purpose into the deconstructionistls ludic jouissance; but unlike Santos, he recognizes the traditional male bias of his trope and articulates ways in which it can be made more inclusive, innovative and participatory, arguing that "democracy is about play because it ought to be committed

-- - 67Kingwell, "Let's Ask Again: 1s Law Like Literature?", op. cit., at 333.

68Hutchinson, "it's All in the Gamen, op. cit., at 31, 35 and 36.

69Ibid., at 40. This passage caIls to mind the whole tradition of Aristotelian rhetoric as an element of phronesis which was of particular interest to the common sense philosophers. 234 to maximizing everyone's opportunity to play and re-play Iife's game"." It is also

Hutchinson's view, however, that this kind of transformation of legal practice will not occur until forrnalist legal education is changed, so that lawyers learn how to engage their clients (and especially their poor clients) in group-based and power-oriented programs rather than relying on adversarial litigation and the assertion of individual rightsY1 If Hutcheson believed that law's proper function was to institutionalize the social benevolence which exists more naturally between perçons within close social relationships, Hutchinson recommends that lawyers get close enough to their clients to figure out what they really want. and that lawyers recognize the debilitating effect court-generated rights-determining judgments can have on the social relationships which matter most to people.

3. The Limits of Freedom to Reject Postrnodernity

There is probably no aspect of contemporary legal theory more ideologically inimical to postmodernism than the Po~nerian'~law and economics movement.

70 Ibid., at 40. Or perhaps, because 1 am a woman who also enjoys a vanety of sports, this metaphor does not seem gender tainted to me.

""~al~ar~",op. cit.. generally and specifically at 785: Hutchinson is particularly interested in W. Wesley Pue's paper about legal education and legal history, "In Pursuit of Better Myth", op. cit. What Hutchinson has in mind is the proliferation of altemate dispute resolution stral'regies which make it possibfe for parties to tailor their own resultrtiori.~!Q !hW disputes and to sustain ongoing relationships in family or commercial contexts when it is clearly in everyone's interesl to do so.

72 Named after Richard Posner, former professor of law at University of Chicago, now judge on the United States Court of Appeal for the Seventh Circuit; particulariy noted for The Economics of Justice (1983) and Economic Analvsis of Law (1 993). 235 Coopting Adam Smith, it has orchestrated a pervasive and positivist ideology of the efficient rational maximizer in the market place through the instrumentality of Smith's

"invisible hand", claiming that laissez faire fuses public and private interests and conveniently ornitting to take into account that Smith was never interested in wealth maximization except as a means to his overarching goal of creating a civil society.

Well known and respected for his scholanhip internationally, among Canadian law and economics scholars Michael Trebilcock is the undisputed dean. Although he is a prolific academic, generating an astonishing volume of papers and reports alone or in conjunction with other scholars, the publication of The Limits of Freedom of

on tract^^ was even for Trebilcock a major piece of scholarship. The Fifth

International Conference of Consumer Law, held in May, 1995 at Osgoode Hall, focussed its discussion around this book; Allan Hutchinson's contribution, in which he affectionately 'outed' Trebilcock as an unconscious postmodernist, was probably the most controversial contribution at that e~ent.7~

Trebilcock is interested in those diffÏcult contract cases where (because of coercion or information asymmetries) we are compelled to question after the fact whether or not both contracting parties had sufficient autonomy to be able to determine that their deal was welfare maximizing for each of them when they made it; he offers an economic analysis of an important ethical issue, asking when opportunistic behaviour constitutes unconscionability which ought to be remedied by

- - -- 73Supra, Introduction note 28

74See Allan C. Hutchinson, "Michael and Me: A Postmodem Friendship" (1995) 33 Osgoode Hall L.J. 2 at 237. 236 the courts.

As he describes in his Preface, Trebilcock entered into an extended dialogic process in writing the book. He sought out and took into account professional academic critique gleaned frorn colleagues ai various workshops and student responses to materials presented for class discussion. He also engaged in informal debates at his regular pub with various fnends whom one would assume had a personal rather than a professional interest in these issues"; this latter source in particular is congruent with the neoAristotelian common sense tradition of valuing ordinary opinion in the formulation of practical wisdom and the postrnodern integration of the professional with the popular.

To illustrate these problerns and to illurninate the shortcornings of standard modernist contract doctrines, Trebilcock takes on the tough issues such as surrogate birth. pornography. prostitution, slavery and the sale of body organs - the stuff of popular journalism and talk shows. about which everyone can be expected to hold strong views. What ought to be done to enhance welfare and to protect autonorny, and to which institution should responsibility for regulation be allocated? Under what circurnstances should even dubious contracts (left opportunistically incomplete or entered into under duress) be upheld, with perhaps the court reading in more reasonable terms? When should the courts declare the contract invalid? When are changes in circurnstances genuinely unforeseen. and on whom should the residual losses arising out of such circurnstances fall? And what role should administrative

'Vhe Lirnits of Freedorn of Contract, op. cit, at vi. agencies be assigned for proper regulation of structural monopolies? Trebilcock's book goes weil beyond the traditional wealth maximizing rationale of the law and econornics school to consider whether the state should prohibit some values from being commodified at all, and, further, how such well-meaning state restrictions on cornmodification may in turn constitute an ongoing paternalisrn that restricts ernerging autonomy among the marginalized by reinscribing unconscious discrimination along gender or racial lines.

For Hutchinson, Trebilcock's analysis is encouragingly indeterminate and rife with contingency, in part necessarily so given that concepts of autonomy and welfare themselves are resistant to sharp definition. It is because Trebilcock acknowledges the irnpossibility of coming up with hard and fast rules to resolve any of these difficult problems, and because he further acknowledges that whatever solutions are implemented to deal with one aspect of these problems will imrnediately effect systematic changes that cannot always be predicted or controlled, that Hutchinson wishes to welcome him into the postmodern fold. Dubbing hirn a closet postmodernist who balks only at the prospect of postmodern nihilisrn and chaos,

Hutchinson urges Trebilcock to join him and not to "lose his postmodern nerve when he needs it rno~t".~~Predictably, this invitation is one which Trebilcock declines vigorously. He points out that he does corne up with fairly stmctured solutions for each of his difficult probiems, while acknowledging that sorne of his solutions are provisional and will necessarily require adjustment in accordance with the

76 Hutchinson, "Michael and Me", op. cit., at 241-2. 238 circumstances of individual cases77 - a response which is sufficiently hedged about with qualifications that it tends to confimi Hutchinson's observation rather than to refute it.

Hutchinson does not, as Trebilcock supposes, condemn him for his "faiiure to offer a meta-theory" or for his "moral pluralism" generated by the "simple intuition" that we al1 seek to vindicate competing values in different facets of our live~".~~On the contrary, these are just the qualities which Hutchinson sppiauds, even while subversively and provocatively labelling them postmodemist. Trebilcock earns

Hutchinson's criticism here only for the minimal meta-theorking he cannot resist when he does engage in some modernist tabulations of competing values and some modernist, non-contingent recommendations about institutional competen~ies.~~if

Trebilcock is stung by Hutchinson's characterization of his analysis as a simple- minded injunction to "think clearly", that may be because Hutchinson had not then fully evolved or explained his very sophisticated and subtle understanding of what it means for a judge or a lawyer to engage in reasoned ana~ysis.~~

What grieves Trebilcock (despite his own cornmitment to process in writing this book) is what he considers to be Hutchinson's obsession with process and

Hutchinson's apparent lack of understanding that someone must act, that the putting

77 See Michael J. Trebilcock, "Critiques of the Limits of Freedom of Contract: A Rejoinder" (1995) 33 Osgoode Hall L.J. 2 353 at 360.

'?rebilcock, "Rejoinder". op. cit., at 361 : these locutions are notable for their invocation of intuitive common sense, in the philosophical tradition we have been explonng.

78Hutchinson, "Michael and Me", op. cit, at 242

80 Supra, note 61 and following; Hutchinson's "Gamen paper was presented the following year, in 1996. 239 forth of provisional stances and the engaging in dialogue can only go on so ~dng.~'

But at points in his analysis, Trebilcock himself adopts a stance quite congruent with

Aristotelian virtue in action and explicitly endorses a common sense ad hockery or

"muddling through", as Hutchinson notes." This approach is very like Hutchinson's own stance that a judge must decide without determining objective values once and for all, that "anything might go". The judge's task is to persuade through his rhetoric that the solution he reaches through contextual reasoned analysis is just in the particular circurnstances of the case before him.

Trebilcock asserts that some policy by definition must be determined in advance, especially to frame those issues of distributive justice going to the heart of

Hutchinson's concerns about the empowerrnent of the poor and marginalized; administrative agencies apply regulation and only rarely decide on a case-by-case basis. But for Hutchinson even policy can be provisional and renegotiable and contingent. Moreover, for Hutchinson to Say that it is never meaningful to contrast free markets with schemes of government regulation because the market itself is inevitably a form of government regulationa3is not (as Trebilcock supposes) the same thing as to Say that the market is a given and not in need of moral justifi~ation.~~Hutchinson's observations here are conceptual and normative. The

81Trebilcock, "Rejoinder", op. cit., at 364-5.

%ebilcock, Lirnits, op. cit., at 126 and 163: noted by Hutchinson in "Michael and Me". op.. cit., at 241.

83 Hutchinson, "Michael and Men, op. cit., at 243. The Risk articles, supra Part IV notes 21 and 22, which describe the evolution of business corporations in nineteenth-century Ontario certainly provide historical evidence of this contention, if any were needed.

?rebilcock, "ResponseW,op. cit., at 362 240 publiclprivate distinction is a fafse dichotomy; poor persons cannot make choices outside the social constnicts which constrain their choices "al1 the way down". That is why the very concept of "autonomy" is impregnated with the constraints implied by capitalism and the debased citizenship of fungible consumers which has historically valorized capitalism. Self-interested bargaining is not a more natural human attribute than benevolence, trust and c~llaboration~~- the very observation made by

Hutcheson, Hume and Smith.

What Hutchinson wants, and what Trebilcock wants too, is a society which ameliorates oppression and enhances welfare. Trebifcock is persuaded that this goal can best be achieved through more nuanced protection of individual autonomy, including increased state intervention in the development of human capital to effect redistributive goals. Hutchinson looks instead to institutional experimentation which will nurture collective participation, mutual responsibilities and the generation of communal goods, but without denying that any unitary focus on redistributive goals is irnpracticable.a6 Whether one wishes to apply the postmodern label or not, there is

(as Hutchinson suggests) less of a gap between these stances than Trebilcock seems to admit. We can recall that Aristotle's solution to the same dilemma was his pragmatic recognition of proportionate equality. We find it intuitiveiy just that there be some inequality of distribution of a plurality of local goods in recognition of empirical variation in individual desert because we believe frorn ernpirical evidence that such

85 Hutchinson, "Michael and Men, op. cit., at 256

86 Ibid., at 258 variation will motivate the highest human effort from which we ail benefit collectively, but at the same time we seek some convergence around concepts of higher goods

(although not necessarily foundational or transcendent goods) sustained as a horizon of normative value, to use Taylor's tern1.8~ In any specific instance which requires us to choose between the two, we must engage in that sifting and sorting characteristic of practical wisdom, a process which in itself continually redefines the horizon.

One of the reasons that Trebilcock rejects postmodernism is because he considers it to be hostile to ideas, that form of rationality he defines as "conventional thinking" and obviously finds congenial. Trebilcock insists that ideas matter in collective decision-making,88 but he is mistaken in assuming that Hutchinson (who clearly belongs within the moderate, moral and referential mode of postmodernisrn rather than the nihilistic or decontmctivist school) would dispute the point. In fact, given his avowed hostility to postmodernism's fusion of the publiclprivate distinction, it is ironic that one of the ideas to which Trebilcock has persistently devoted a great deal of his own intellectual energy is the reconceptualization and privatization of public services.89

67 Supra, Part II note 34 and following.

88~rebilcock,"Response", op. cit-, at 363. Trebilcock's conviction that ideas matter is a recurrent theme in his work. See, for example, M.J. Trebilcock, "Rethinking the Role of Govemment in an Era of Diminished Resources", Centre for the Study of State and Market, 1995 and The Prospects for Reinventinq Government (Ottawa: Renouf Publishing, 1994).

69 See, for example, M.J. Trebilcock and R.J. Daniefs, "The Future of Ontario Hydro: A review of Structural and Regulatory Optionsn in Ontario Hvdro at the Millennium: has mono~oIy'smoment passed? ed. R.J. Daniels (Montreal: Queen's University Press, 1996); M.J. Trebilcock and R.J. Daniels, "Pnvate Provisions of Public Infrastructure: An Organizational Analysis of the Next Privatization Frontier", University Because Trebilcock is Canada's preeminent law and econornics scholar, it is not surprising that he has attracted a considerable coterie of more junior academics working in the same field to University of Toronto, and it is intriguing to note variants of the unconscious postmodernism identified by Hutchinson in their work as well. At the Limits of Freedom of Contract seminar, Harnish Stewart presented a papePo which atternpts to expand on Trebilcock's analysis of the instrumental and intrinsic value of autonomy to propose a third approach. It is Stewart's view that autonomy is conceptually necessary to contract law, in somewhat the sarne way that Rorty argues human rights are conceptualiy necessary to the kind of society we wish to achieve;

Rorty pragmatically concluded that futther debate on the foundational question is outmodedg' but Stewart does not.

In Stewart's opinion, Trebilcock does not take autonomy seriously enough as a structural (or formalist) element of contract law, and his failure to do so entails a collapse into purely consequentialist (or realist) arguments which can only focus on welfare issues. Stewart attempts to remedy the defects in Trebilcock's analysis by

of Toronto Faculty of Law (unpublished draft) and M.J. Trebilcock and A, Bernstein, "Labour Market Training and Retraining: A Comparative Evaluation", Faculty of Law, University of Toronto, 1906 (unpublished draft). Of course, the central importance of ideas is itself a key aspect of Scottish Enlightenrnent thought which, as we have seen, gave rise to the value accorded to public education both in Scotland and in Canada. In particular, the idea that proportionate equality is a motivator for individual improvement which will, in tum create social improvement, has had a very long run in Canadian society; in a debased forrn, we can even trace it into mandatory woddare schemes.

mHamish Stewart, "Where is the Freedom in Freedom of Contract?" supra, Introduction note 28 at 259.

81Supra, Part IV at note 33; Rorty acknowledges that this aspect of his thought is derived from Eduardo Rabossi. 243 considerhg autonomy in relation to the cornmodification of the mother's autonomy

inherent to the surrogacy issue. His formalist argument is based on his conviction

that it is conceptually incoherent within the structure of contract law for a contracting

party to contract away the very autonomy which rnakes contracting possible.g2

Trebilcock rejects this critique on the strong grounds that surrogacy contracts

are relatively time-limited, which rneans autonomy is not permanently contracted

away, and on the weaker ground that Stewart has not dernonstrated reproductive

capacity to be a fundamental elernent of agency. A more interesting idea. which

Trebilcock mentions but does not develop further, is the notion that a woman's

decision to enter into a surrogacy contract (or to abort the child. or put it up for an

adoption, both of which are permitted within legal constraints) may be inconsistent

with the autonomy of the baby. Stewart's position, he says, fails to specify what

additional considerations beyond a test of legal wrongdoing might be required to

solve this puzzle and therefore entails a pro-life position on the abortion debate.g3

And this Stewart in turn denies, because it is his opinion that the foetus is not an

autonomous person and its rights do not automatically trump the mother's; it is clear

enough that embedded within Stewart's concept of autonomy is a concept of rational

individuation very similar to ~agleton's."

._ 82 Op. cit., at 263; Stewart acknowledges his debt to John Stuart Mill and to Hegel here.

~rebilcock,"Rejoindef, op. cit, at 366-7

84Stewart, op. cit., at 265 note 21. See Jennifer Nedelsky, "Reconceiving Rights as Relationship" (d993) 1 Review of Constitutional Studies 1; although she would not necessarily define herself as a postrnodemist, Nedelsky sets out a relational concept of rights particulariy in situations of inequality within families and also as a dialogic constitutional value embedded within S. 1 of our Charter, which she 244

Stewart considers it mnceptually incoherent for an agent to bargain away her own autonomy. However, he perceives no conceptual diffculty in an agent bargaining away someone else's potential or actual autonorny (which that second individual presumably might have exercised to choose connected relationship as the essence of what it means to be human) under circumstances in which it is to the instrumental advantage of that agent to do so.

Stewart says that the weakness in Trebilcock's version of cornmodification is that he assumes it is appropriate to commodify everything: "the question of cornmodification must be considered, at least in part. from the perspective of an agent who is not merely instrumental to other agents and who has a capacity to behave non-instr~mentally."~~This is not an accurate assessrnent of Trebilcock's position. However, a more serious conceptual problem with Stewart's critique would point out that his own definition of autonomy in relation to commodification does not eliminate this taint of instrumentality, any more than Kant is able to eliminate a residual instrumentality from his categorical irnperative.

At the end of the day, Kant advises that we ought not lie because we do not

contrasts with the American constitutional "rights as tmmps" nom. Recall also that in her analysis of Hume's doctrine of moral sentiment, Annette Baier (supra, Part IV note 30 and following) pointed out that the most difficult problems anse out of the intemal contradictions and the instabilities of contradictions particularly when relationships are between unequal persons and not chosen. For Baier, the point would surely be that the foetus is a connected being; the determination of whose rights ought to trump the other's would have to be determined contextually in any given situation, taking into account the woman's ability and willingness to sustain her responsibilities to her potential child, which will in tum depend upon how well others are meeting their responsibilities to her within her own complex web of connections and circurnstance - the very kind of analysis offered by the Supreme Court in the Morcrentaler decision: R. v. Morsentaler, [1988] 1 S.C.R. 30 at 171

85Stewart, op. cit., at 271. want to be lied to, and Stewart advises that an autonomous agent may assert her autonorny in denying the (potential) autonomy of another agent to choose what autonomy rnay mean for him. There is an implicit[y shifting and instrumental definition of the legal subject and of the meaning of autonomy embedded within

Stewart's formalist analysis however hard he tnks to eliminate it. ln fact, he has elsewhereg6explicitly advocated recognition of the dynarnic relationship of mutual dependency which always exists between formalist and realist conceptions in legal theory in a manner thoroughly congruent with the postmodemism to which he would not overtly subscribe.

Working within a feminist perspective which rnay seem more obviously compatible with postrnodernisms, Gillian Hadfield is another of the young law and economics scholars who presented a papeP7 at the Limits of Freedom of Contract seminar. Hadfield begins by invoking Jennifer Nedelsky's notion that autonomy exists not in individuated separation but only in relati~nship.~~Trebilcock analyzes the

86 Hamish Stewart, "Contingency and Coherence: The Interdependence of Realism and Formalism in Legal Theory" (1995) 30 Val. U. L.Rev. 1 1. In this paper, Stewart sets out Posner's law and economics realisrn in cornparison with Weinrib's analysis of corrective and distributive justice as it derives from Aristotle. Like Weinrib, Stewart omits Aristotelian notions of complete justice as the practical integration of these two partial justices through equity which Aristotle considered to be always a means to virtue in action; corrective and distributive justice were for Aristotle never formally coherent ends in themselves. Stewart concludes (at 48) that formalism and reatism are interdependent and posits that law's coherence depends on "a more systematic reconciliation of these two tendencies" which he considers l'a subject for future research" (at 50). It would be my contention that this interdependency was well understood by Aristotle, by the Scottish Enlightenment philosophers and by the referentiaf postmodemists, among whom 1 would include Hutchinson: Stewart, like Trebilcock, is more of a postmodemist than he realizes.

07 Gillian K. Hadfield, "The Dilemma of Choice: A Feminist Perspective on The Limits of Freedom of Contract, supra Introduction, note 28 at 337.

08 Supra, note 93; Hadfield also cites Nedelsky's "Property in Potential Life: A Relational Approach to Choosing Legal Categories" (1993) 6 Can. J. Law & Jur. 343 at 346, where Nedelsky writes: daims about the market as a suitable or even crucial vehicle for the exercise of autonomy 246 difficult contract issues when autonomy and social welfare diverge, but this feminist definition insists on integrating the honotions: if autonorny is constituted by relationship, then it is difficult to see how I can enhance my own autonomy except by enhancing the social welfare of those with whorn I exist in relationship, and because I am committed to those relationships through trusting interdependence presumably I would not wish to enhance rny (individuated) autonomy at the expense of those others even if I could-

But the feminist dilemma of choice centres on the perpetual and contextual decision of whether wornen's choices should be welfare enhancing or autonomy enhancing when both values cannot be integrated; throughout most of her analysis,

Hadfield seems to slide back into a more traditional and individuated concept of autonomy separable from welfare. As Trebilcock notes in his responsegg, Hadfield even expands well beyond his observation that autonomy and welfare sornetimes diverge to a conclusion that welfare and autonorny almost always diverge for women.

This disjunction between her initial definition of autonomy-as-relationship

(which entails an integration of autonomy and social welfare) and her ensuing analysis of the wide divergence between autonomy and welfare may be nothing more than an illustration of the extent to which women's preferences, including preferences for autonomy, are socially constructed. In a male-dominated society severely

proceed without inquiry into what actuaily makes human autonorny possible [i.e. relationship].

?rebilcock. "Rejoindef' at 374 247 constrained by social norms which still valonze rational individuation over connection, it is not surprising that these multiplicities of meaning surrounding the concept of autonomy persist, and it can be anticipated that they will continue to do so. At any rate, Trebilcock discusses social construction of preferences at sorne length in his chapter on patemalism; Hadfield flags the issue, too, although she indicates

(ironically) that she is less pessimistic about a socially constructed restriction of women's autonomy than is Trebilcock him~elf.'~~

Like Hutchinson, she puts foward the view, briefly in a footnote, that contracts are about consensus which may be grounded in emotions such as love or duty and need not necessarily be about self-interested bargainingI0', but she does not explain why on her view it is necessary to create formal documentation committing to such emotional consensus. Baier, following Hume, would surely view contract in these contexts as a necessary recognition of the mutability and interna1 contradiction inherent within our emotional states which are nevertheless the engine of moral sympathy. Contract as a legal institution structures natural moral sentiment and serves as a sort of memorandum or overlay of rational inference.

Hadfield would not go so far, however. As her suggestion that room be left for renegotiation of surrogacy and separation agreements makes clear. she still considers that emotion distorts autonomy, that wornen are particularly disadvantaged by such emotion, and that both psychological and legal counselling might have to be

100Ibid., at 347.

101 Ibid., at 341 note 5 mandated by the governrnent to create "preconditions for truly autonomous choice".lo2 Trebilcock is much more skeptical about the likelihood that tight restrictions on choice can enhance autonomy, and (in a paradoxically postmodern fashion congruent with Nedelsky's relational definition of autonomy) endorses the

nrr qnr4 autonomy to choose not to be autonornous - that is, to be self-sacrifici18y UtlU altruistic - if that is what persons freely are inclined to choose.lo3

Again like Hutchinson, Hadfield argues that a wornan making decisions about surrogacy or about prostitution is not really free of duress if she is suffering from economic deprivation such that she has no "normatively acceptable options from which to ch~ose"'~~,although Hadfield does not go so far as Derrida did in concluding that the very category of choice under such circumstances becomes tri via^.'^' Hadfield, however, merely takes note of the possibility that market regulation may mean there is no such thing as private ordering, and that therefore collective institutions rnay generally be more autonomy-enhancing than markets,

102 Ibid., at 349. My experience with family law practice in articles suggests that the "guilty party" - the party who wants out of the rnamage - quite often is prepared to offer an initiai sefflement shortly after separation which is more generous than he can afford or less demanding than she really requires, and that this initial outburst of moral sympathy is subsequently modified by counsel before it is reduced to a settlernent agreement.

1?rebilcock. "Rejoinder", op. cit, at 377. Trebilcock here goes well beyond Smith's agnosticism on the subject of altruism; for Smith, it was enough to obsewe, empirically, that prudence and propriety generate behaviour which functions as altruism, whereas Trebilcock seems to posit that persons can "really" be altruistic and that paternalistic concerns for their well-being should not be imposed to prevent them from acting in accordance with their altmistic impulses. There is a multiplicity and ambiguity in the emotional sources of motivation for human behaviour which need not be enquired into too intrusively, Trebilcock seerns to suggest - stance already familiar to us from the cornmon sense philosophers such as Brown and (in Canada) Lyall.

101Ibid., at 344

105 Supra, Part V at note 30. 249 without buying into these conclusions as Hutchinson does; but neither is she persuaded that Trebilcock's private ordering is generally the solution of choi~e.'~~

What Hadfield admires most about Trebilcock's analysis and finds compatible with feminism is his conclusion that. because welfare and autonomy frequently do diverge, it is necessary to pursue these values independently and simultaneously through a variety of instituti~ns.'~~But these institutions are, optimally, integrated and flexible; Hadfield seeks a "multi-pronged approach" in which the blurring of distinctions between private and public ordering is compatible with the general blurring and overlapping of autonomy and welfare c~nsiderations.~~~

And this is an idea much more fully developed in Hadfield's extremely interesting and provocative piece, "The Second Wave of Law and EconomicsII .109

She begins with an overview of the efkiency and the rhetorical power traditionally ascribed to Posnerian economic analysis but then acknowledges that lawyer- economists are now seeking to reintegrate the normative power associated with law back into that efficiency equation; too many externalities are uncornmodifiable in any simple cost-benefits analysis. Hadfield identifies five emergent areas of study within this second wave of law and economics: more self-conscious efficiency analysis; efficiency analysis to describe and predict human behaviour; a law and economics

-- - 106Ibid., at 347

107lbid., at 339

108 Ibid., at 350

loaGillian K. Hadfield, "The Second Wave of Law and Economics: Leaming to Surf", Keynote Address: Australian Law and Economics Association Annual Meeting, The University of Melbourne, July 1997. 250 interfused with socially progressive causes; an increased awareness of the

normativity of methodology; and, finally, the "multicultural" approach which clearly

interests her most, by which she means an interlegality of economics as one tool of

legal analysis integrated with many other possibilities, perhaps sequentially or even

on occasion sirnultaneously. But Hadfield does not seem to be aware of how many

of these approaches were anticipated by Adam Smith, nor does she specify what

criteria of choice might be used to select among the tools of legal analysis proposed

in the multicultural approach - and it is here that concepts derived from Aristotelian

phronesis and from contemporary referential postmodernisms (including Kingwell and

Hutchinson) could be most helpful to her.

To illustrate my thesis that postmodernism is becoming ubiquitous in Canadian

legal theory, I chose the hardest case - positivist law and economics, most direct

descendent of the modernist law-as-science ideology. At the risk of replicating the

Ontario centrisrn which has plagued Canadian legal history, 1 focussed my discussion

around the work of three University of Toronto legal theorists -- justifiably, I hope, on

the grounds that Michael Trebilcock is undisputedly the key figure in this movement in

Canada, but alço pragmatically because Allan Hutchinson had already paved the way

in identiving his old friend as a postmodernist. The occasion of the seminar on

Trebilcock's important book provided exactly the kind of dialogic encounter in which

postmodernisms engage most happily and the opportunity to demonstrate the

intersections of modernisms and postmodernisms in relation to a particular topic. I

preferred to delve relatively deeply into the arguments of each of these scholars 251 rather than to devolve into a listing of names those who "are" (or are not) Canadian legal postmodemists; such arbitrary categarizing would be reminiscent of, but not much more usefu! than, those lists of Canadian politicians and lawyers and soldiers and doctors and writers and artists which fiIl the multivolume nineteenth century histories of Scottish immigrants to Canada.

But Canadian legal postmodernisms are ubiquitous, once we are on the alert for thern -- theoretical, procedural, substantive and jurisprudential. Our two lenses can help us see this ubiquitous postmodernism implicit within the Canadian legal landscape: the postmodern fragmented and decentered subject, and the concomitant postmodern fragmentation of meaning. Reversing the pattern of essays in conventional Canadian legal history, which has been to reconstruct a specific historical event by focussing on archival materials and then to conclude with a few more speculative paragraphs, 1 will here append to this lengthy exercise in specu lation a few paragrap hs of brief concrete example to indicate postmodernisrn's ever-expanding scope and to suggest potential areas arnenable to researchl10 through the postmodern perspective.

Let's look first to the creeping ubiquity of postmodern legal theory. Consider, for example, another examination of contract doctrine by law professor Brian Langille, writing with philosophy professor Arthur Ripstein, which deals specifically with

110 I have written at much greater length on this topic in the Bertha Wilson project, which focuses almost entirely on concrete discussion of postmodern jurisprudence and postrnodern proceduralism. fnistration and the filling of gaps."' Langille and Ripstein draw on philosophy of mind and language'" to iiluminate what is understood by irnplied terms to a contract and to develop their argument that the meanings which rnake agreement possible exist only in a generally unarticulated, often uncontemplated but shared public sphere, a common space between the two parties. Consider Ronald Daniels' article, "The Law Firm as an Efficient C~mrnunity""~,in which he argues persuasively that efficiency concerns within the law firm require it to abandon the traditional, highly cornpetitive and individuated race from associate to partnership and to adopt instead a relational and less hierarchical mode of organization which can accommodate a multiplicity of cultural norms and practice styles without sacrifice of cohesion. cornmitment and loyalty. Or consider Karen Knop's analysis of the doctrine of self-determination1l4in which she atternpts to render visible, through feminist and racefculture theory, the multiplicity of legal subjects seeking participation who had traditionally been elirninated from consideration in the highly abstract, modernist world of international law defined as relationships between sovereign states. Langille,

Daniels and Knop would not cal1 themselves postmodernists, but these three papers

il1Brian Langille and Arthur Ripstein, "Stnctly Speaking - It Went Without Saying" (1996) Legal Theory 2 63

112They rely prirnarily on Ludwig Wittgenstein and Donald Davidson. Davidson develops a theory of public meaning generated through triangulation which is simiIar to the ideas expressed by Michael Fischer: Langille and Ripstein cite Davidson's, "A Nice Arrangement of Epitaphsn in Truth and lnterpretation ed. E. LePore (1986).

113 Ronald J. Daniels, "The Law Firm as an Efficient Community" (1992) 37 McGiII L.J. 801

114 Karen Knop, "The Making of Difference in International Law: Interpretation, Identity and Participation in the Discourse of Self-Detemination" Harvard Law SchooI Feminist Project Speaker Series, April 29, i 997 selected pretty much at random reveal that al1 three are interested in postmodern shifting subjects and multiplicities of meanings.

Second. we can seek out examples of postmodern legal procedures, in so far as they have multiplied both legal subjects and legal forums where dispute resolution occurs. These procedures have focussed primarily on the expansion of the traditional, modernist two-party nexus of plaintiff and defendant or state and accused.

Relaxed rules of inter~ention"~now make it possible to bring a rnultiplicity of points of view before the court, put fonvard by interested persons who do not have standing as parties to the action; this expanded evidentiary base has been a particulariy important move in the development of Charter juri~pnidence'~~and is dictated by the balancing of social policies mandated by S. 1. New legislation making possible class proceedings on a contingency fee basis'17 has gone well beyond the old rules permitting joinder of parties and actions118.The courts have opened up to rnultiple- party product liability suits, for example, which might not previously have been pursued because of the relatively high cost of litigation in relation to the individual

115See Rule 13 of the Rules of Civil Procedure O. Reg. 560184 and Rule 18, S.0.R.192-674; there has been a considerable body of scholarly writing on this topic, including David Scriven and Paul Muldoon, "Intervention as an Added Party: Rule 13 of the Ontario Rules of Civii Procedure" (1985) 6 Adv. 2 219 and "Intervention as a Friend of the Court*' (1986), 6 Adv. Q 4 418; Eugene Meehan, "Intervention in the Supreme Court of Canada" (1994), 16 Adv. Q. 2 137; Jillian Welch, "No Room at the Top: Interest Group Intewenors and Charter Litigation in the Supreme Court of Canadan (1985). 43 U.T. Fac. L. Rev. 204; and John Sopinka, "Interventionn (1988) 46 Adv. 6 883.

1 l6See, for example, Operation Dismantle v. The Queen LI9851 1 S.C.R. 441 ; R. v. Butler, [A9921 1 S.C.R. 452; and Tremblav v. DairiJe,[1989] 2 S.C.R. 530.

117 See, for example, Michael Trebilcock, "The Case for Contingent Fees: the Ontano Legal Profession Rethinks Its Position" (A989) 15 Can. Bar L.J. 360 and Class Proceedings Act, 1992 S.O. 1992, c. 6.

118See Rule 5, Rules of Civil Procedure. clairn.

In the cnminal law context, victim impact statements are now routinely submitted both to assist judges in sentencing and in recognition of their psychologicat value in bringing repose through participation for family members. Aboriginal sentencing circles incorporating aboriginal concepts of reconciliation and restitution represent are a reflection of increased respect for our plurality of legal va~ues."~

Postrnodern reforms in the law of evidence, particularly in relation to the adrnissibility of hearsay'", have radically modified our old modernist concept of the immutability and neutrality of facts.

In addition to the multiplication of private commercial arbitration and mediation

service^'^' as alternative forums for dispute resolution (soon to be mandated and court-annexed throughout Ontario), there has been an enormous proliferation of administrative agencies and tribunals. One justification for this plurality of alternate sites may have been traditional modernist concerns for efficiency and expertise. But the result has been a postmodern decentering of decision-making authority outside the courts, very often to persons who are not even trained in law. And there has

118See The Justice Svstem and Aboriciinai Peo~le,v. 1 (Winnipeg: Queen's Printer, 1991) for a general overview of aboriginal legal values as they contrast with the principles embedded in the Canadian justice systern.

120See, for example, Ares v. Venner, [1970] S.C.R. 608, adopted in R. v. Khan, [1990] 2 S.C.R. 531 and confimed in R. v. Seabover (1991), 66 CCC. (3d) 321 (S.C.C.). Hearsay is now admissible at the discretion of the trial judge if it is relevant to the ultimate issue to be proved and both necessary and reliable; the postmodem judge must exercise his discretion contextually and can no longer apply a mechanical rule.

121See Sub-Cornmittee on Dispute Resolution, Report Summary (Toronto: Law Society of Upper Canada, Febniary, 1993) for an overview of the advantages of ADR and its applications 255 been a corresponding engagement of the parties in devising their own flexible and informal solutions to their problems - a significant departure from the objectivity,

neutrality and universality which were once the key indicia of justice.

4. A Few Postmodernly Provisional Conclusions

To reiterate, just as Scottish law became identified with Scottish national feeling1", for better and for worse our Charter has become increasingly identified with Canadian national feeling. Charter attitudes have blurred the boundary between constitutional law and other areas of law, permeating Canadian society and even

redefining Our concept of the unitary and sovereign Canadian state into a postmodern

multiplicity of shifting, provisionally autonornous entities which comprise a new,

multinational entit~.'~~And this blurring of identities and saturation with ideas is

something we have experienced before as a culture, or perhaps have never stopped

experiencing.

122 See David Daiches, supra, Part I note 33

'%is is a sweeping generalization, of course, but it is an opinion widely (if not always approvingly) held. See, for example, Richard Gwyn's Nationalism Without WalIs, op. cit., Introduction note 1; John Ralston Saul's The Unconscious Civilization, op. cit., Introduction note 24; and Kenneth McRoberts, Misconceiving Canada. The StruqqIe for Canadian Uni& (Toronto: Oxford University Press, 1997). After a thorough discussion of Pierre Trudeau's role in the evoiution of the Charter, McRoberts concludes at 261: Canada cannot be thought of as a single nation. lndeed Canada contains distinct collectivities that see themselves as nations and possess the institutional and cultural distinctiveness usually implied by the terrn. Canada might be better understood as a 'muItinational' entity. The basic premise of such a 'multinational' Canada is that nations do not have to be states in the fullest sense of the term; that is, they do not have to be sovereign states. Rather, their needs can be met through arrangements that give them autonomy for certain purposes -in other words, federalism. Within such a Canada, 'unity' is not achieved through the solidarity of a single nation, as in 'national unity'. Rather, it involves accommodation and consensus among the collectivities that rnake it up. 256

There is good evidence that Canada was, for at least a hundred years, a cultural colony of Scotland and its neoAnstotelian Scottish Enlightenment doctrines of moral sentiment and comrnon ens sel*^, selecting among loosely associated concepts of benevolence, reciprocity, responsibility, prudence and propriety and modifying them in accordance with the political and social requirements of our evolving society. These values were infused and absorbed within public and private structures of Canadian society during that era, including the formal ideoiogical state apparatuses of religious and educational and political institutions where one would expect to find them but also (as we have seen) filtering into the ideologies informing constitutional scholarship. the formation of corporations, the evolution of railway administration and even defamation suits. It seems probable that further research in legal history which was self-consciously attentive to these Scottish Enlightenment values (both extra-legal and intra-legal) would generate more concrete evidence of their influence.

In accordance with the theory put fornard by Knafla and Binnie, then, I have atternpted to demonstrate how an amorphous, evanescent and collective "legal mind" defined itself within the community, but for various reasons this is one aspect of our legal history which has not yet been well documented. Nineteenth century legal histories were produced, but legal theory was not an explicit topic much explored durhg the nineteenth century itself. More recent scholarly articles written within the

124 See W.J. Rattray, Wilfred Campbell, W. Sbnford Raid et al. in Part I at note IOff. for cultural influence; for philosophical influence, see John Inring. supra, Part II note 45; see also A.B. McKiIlop, LesIie Amour and Elizabeth Trott, supra Part Ill at notes 1 and following. 257 reconstructive genre of legal history generally include only peripheral references to nineteenth and eariy twentieth century cultural attitudes. These attitudes are most often not identified (despite being identifiable) as deriving from Scottish common sense sources. A number of legal scholars, including David Flaherty and Wesley Pue and Blaine Baker, have noted that Scottish Enlightenment influeri.r,e on Cmadian legal thought is an area currently omitted from Canadian legal history, and this paper is one attempt to respond to that gap.

It is my contention that postrnodernism is just as pervasive within conternporary Canadian legal theory and practice now as those common sense doctrines, historically traceable to the pervasive influence of the Scottish

Enlightenment, once were. If so, given Our postrnodern society, this would not be surprising. Postrnodernisrns are (as Santos says, although he is himself quite wonderfully unconscious of the common sense school of philosophy as an historical event) simply expressions of the persistent and ineradicable element of human cognition which we popularly cal1 common sense.

One element of common sense, both as a philosophical tradition and as a popular perception, is the belief that because common sense is something we intuitively share, we need not (and tend not) to articulate consciously what is meant by common sense. Historically, the motivating force behind the common sense school of philosophy was an urgency to make conscious, as a bulwark against the attacks of skepticism and science on religion, the empirical experiences and the moral intuitions which ordinary people shared. But we are generally just as 258 unconscious of our contemporary legal postmodernisrns as our legal historians have been unconscious of the common sense doctrines uncovered in their reconstnictive projects, and for the same reason. Their very ordinariness and the common sense intuitive rightness of postmodern reforms is what makes them unremarkable, taken for granted; when we pay attention, we can see that they are coalescing into an amorphous new ideology, in Kingwell's sense of the term.

It is self evident that, if we are balancing cornpeting interests in a democratic society, we need to take judicial notice of the evidence presented by al1 those Our decision will affect; methods must exist of accommodating aboriginal perspectives of justice in sentencing aboriginal people; of course we ought to take into account what the farnilies of victims of violence need to tell us; there have to be legal structures to make it possible for those individuals suffering medical conditions arising out of faulty breast implants to join together and obtain redress economically. Ali of these developrnents which have multiplied legal subjects, legal meanings, and legal forums for dispute resolution strategies other than formal adjudication participate in the ancient traditions of equity as fairness. And equity was always integrated within

Scottish civil legal systerns, never hived off in a separate court as it was for centuries within the precedent-bound English comrnon law system which (not surprisingly) historically lent itself so readily to modernist rational analysis.

That is, these postmodern reforms are unremarkable and self-evidently fair so long as the postmodern label is not applied. Call them postmodern, and what is triggered is immediate rejection out of fear of nihilism. "Postrnodern" still signifies the 259 fundamental abandonment of justice defined as neutrality, objectivity and universality.

"Postmodern" still signifies the end of conventional thinking, which is to Say the rationality on which al! Our individuated autonomy, at the very core of what it means to be a human being, depends. But as we have seen, this perception of postmodernism is misconceived and the fear of postmodernism is rnisplaced: nihilism, deconstruction and ludic amorality are not characteristic of our enlightened referential postmodemism, and human existence is at least as much defined in relationship as in the separation we have misunderstood to be freedom. Canadian postmodernisms are not new, not a rupture with the irnmediate modernist past, but a reemergence of a tradition of moral sentiment which is both as old as Western civilization and compatible with the contemporary values of multiculturalism (including nonwestern values) which Canada is pledged to uphold.

Persuaded of postmodernism's potential to achieve a legal ethics of satisving and flexible moral subtlety and (ironically enough) unconscious of the postmodern paradox inherent in his exhortation, Hutchinson urges lawyers to adopt postmodern lawyering and judges to adopt postmodern judging as a matter of deliberate choice.

In my opinion, raising postmodern consciousness may be a good thing but it is probably unnecessary. If Smith is right about the rolling evolution between social consensus and law, then in a postmodern society we can anticipate as an inevitability that postmodernisms will corne to permeate and infiltrate every area of law, and the evidence shows on a balance of probabilities that this is already happening.

However, so long as postmodemism declines to displace the rnodernity which 260 preceded it - and which it also embraces and employs strategically as required - we cannot anticipate any definitive verdict rendering postmodernisms either exonerated or guilty of murdering the rnodemism whose death Richard Gwyn (among others) so vividly regrets. Similarly, it will never be possible to demonstrate conclusively that the enlightened and referential postmodemisrn characteristic of

Canadian legal structures ernerged, in some linear cause-and-effect relationship, out of the neoAristotelian Scottish Enlightenment doctrines of moral sentiment and common sense which saturated and shaped the Canadian community mind for over a century. Our modernist tradition tells us that probabilities are never sufficient to meet the burden of proof beyond a reasonable doubt; these verdicts will remain forever arnbiguous and "Not proven" in the Scottish civil law tradition. We can only remain cheerfully agnostic in emulation of Hume and get on with the pragmatic tasks which are generated by. and which are constantly constituting, the multiple moralities and flexible legalities of the postmodernity we inhabit.