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The National Law Programme at Mcgill: Origins, Establishment, Prospects Dalhousie Law Journal Volume 13 Issue 1 Article 6 5-1-1990 The National Law Programme at McGill: Origins, Establishment, Prospects Roderick A. Macdonald McGill University Follow this and additional works at: https://digitalcommons.schulichlaw.dal.ca/dlj Part of the Legal History Commons Recommended Citation Roderick A. Macdonald, "The National Law Programme at McGill: Origins, Establishment, Prospects" (1990) 13:1 Dal LJ 211. This Article is brought to you for free and open access by the Journals at Schulich Law Scholars. It has been accepted for inclusion in Dalhousie Law Journal by an authorized editor of Schulich Law Scholars. For more information, please contact [email protected]. Roderick A. Macdonald* The National Law Programme at McGill: Origins, Establishment, Prospects I. Introduction This article is about the history of an idea, and about the curriculum of a Faculty of Law within which that idea has been pursued for more than a century. Its purpose is to explore the intellectual origins of the current National Programme of legal education at McGill University, to review the circumstances of its establishment agd evolution over the past two decades, and to evaluate its prospects as the Faculty's sesquicenten- nial celebrations approach.1 *Roderick A. Macdonald, Professor, Faculty of Law, McGill University; Member, Institute of Comparative Law, McGill University. I should like to thank my colleagues J. E. C. Brierley, H. P. Glenn, and G. Blaine Baker for their several suggestions about earlier drafts of this article and for their insights into the theoretical bases of the undergraduate law curriculum at McGill over the past century and one-half. Without their critical perspective and detailed questioning of my initial text, I would not have even come to see (let alone understand) the richness of the stories I am trying to tell here. I also wish to thank my several other colleagues who read and critically commented on the text in its various versions, as well as those alumni and students (from 1922 through 1989) who shared their remembrances and expectations of the McGill programme with me. Obviously, the reader will accept the standard caveat that because this article is intended to reflect my own perspective on the National Programme of legal education at McGill, it does not necessarily represent the views of my colleagues specifically mentioned above, of the Law Faculty Council, or of the academic officers McGill University. 1. Let me emphasize at the outset that other commentators have placed significantly different interpretations on the events comprising the story told here. For general histories of McGill University, the Faculty of Law, and its undergraduate curriculum see, S. B. Frost, McGill University. For the Advancement of Learning Vol 1 1801-1895 (Montreal: McGill-Queen's U. Press 1980), especially at pages 117-118, 158-159, 196, 202 and 277-281 (hereinafter "Vol. I");S. B. Frost, McGill University: For the Advancement of Learning, Vol II, 1895-1971 (Montreal: McGill-Queen's U. Press, 1984), especially at pages 41-43, 153-158, 193-195, 203-205, 217, and 317-320 (hereinafter "Vol. I"); S. B. Frost and D. L. Johnston, "Law at McGill: Past, Present, Future", (1981), 17 McGill Law Journal 31; J.E. C. Brierley, "Developments in Legal Education at McGill, 1970-1980", (1982), 7 DalhousieLaw Journal 364; (hereinafter "Developments"); S. B. Frost, "The Early Days of Law Teaching at McGill" (1984), 9 DalhousieLaw Journal 150, (hereinafter "Early Days"); J. E. C. Brierley, "Quebec Legal Education Since 1945: Cultural Paradoxes and Traditional Ambiguities" (1986), 10 DalhousieLaw Journal5 (hereinafter "Paradoxes"). There have also been two short popular histories of the Faculty of Law written to commemorate the official centenary of the B. C. L. programme. See J. I. Cooper, "The Law Comes to McGill," The McGill News, (summer, 1948) at page 6; and Paul Hutchinson, "McGill Faculty of Law 1848-1948", McGill Daily, December 18, 1948, at page 1. In addition to the above "official" sources, a number of studies have been published about the aims and objectives of McGill's law programme, or about the aims and objectives of legal education generally, but written by McGill professors and former students in a manner which 212 The Dalhousie Law Journal Officially, the modem National Programme was established in 1968 when the Faculty of Law again began teaching a three-year accredited LL.B. degree course, and offered students the opportunity to obtain both B.C.L. (civil law) and LL.B. (common law) degrees in a systemically integrated, bilingual programme of legal studies spread over four years. Unofficially, however, one might say both that McGill's "national programme" has always existed, and that it has never existed: always existed in the sense that the curricular and scholarly concerns that led to its formal re-establishment in 1968 have characterized legal education at McGill since at least 1848; and never existed in the sense that the actual curriculum presupposed by the ambitions of the programme, by definition, can never be fully realized or even fully described in 2 transcendent terms. Because this is primarily the story of a curriculum, I have tried not to concentrate on personalities (especially students and alumni) or other non-curricular developments within the Faculty (such as relationships with the Bar and Board of Notaries, tendencies in legal scholarship, and University politics) except to the extent that any of these elements bear directly on the story told here. And because I focus on a single Faculty of Law, I have not made a great effort to situate the McGill teaching programme at any given time in the broader context of contemporaneous Canadian intellectual currents or trends in legal education, unless, once again, this context appears to have been directly relevant to curricular issues at McGill. Finally, because my purpose in writing is to exhume the unmistakably reflects the concerns animating the National Programme. Most of these references appear in later footnotes to this article. Finally, the Faculty, its programmes and its teaching methods figure prominently in various articles about legal education in Quebec and Canada written by commentators having no connexion to McGill. Among the more important of these are M. Nantel, "ltude du droit et le barreau" (1950), 10 R. du B 97; P. Beullac and E. Fabre-Surveyer, eds., Le centennairedu Barreau de Montrdal 1849-1950 (Montral: Ducharme, 1949); G.-E. Rinfret, L'Histoire du Barreau de Montreal (Montr6al: Y. Blais, 1989); A. Vachon, Histoire du Notariat canadien, 1621-1960 (Quebec, 1972); Julien Mackay, "La loi sur le notariat: son 6volution et son histoire" (1989), 91 R. du N 421; R. St. J. Macdonald, "The Teaching of International Law in Canada" (1974) Can. YB. Int Law 66, at 69-81; and, I. Kyer and J. Bickenbach, The FiercestDebate (Toronto: the Osgoode Society, 1987) at pages 40, 51, 64-66, 71, 77-78, 216 and 271. 2. In writing this essay, and especially its first part dealing with the period 1843-1968, I have relied heavily on Law Faculty Annual Announcements, minutes of the meetings of the Board of Governors and of the Law Faculty Council, and other written statements by University ad- ministrators, all of which can be found in the McGill University Archives. These latter docu- ments include letters to newspapers, annual reports, internal memoranda and committee re- ports, law review articles, etc. For the most part I have taken these archives at face value, except where the secondary research of others casts considerable doubt on the official record. Obviously, until detailed studies of the main events reported here are undertaken it will be dif- ficult to assess the fidelity of this literary record with confidence. Macdonald: National Law Programme at McGill intellectual history of the idea of the National Programme and to trace its various curricular reflexions over the past 150 years, I have consciously left aside consideration of developments in legal theory, except where these seem to have driven the concept of the National Programme itself? To state the details of the curriculum of the McGill Faculty of Law (in effect to specify what "National" has meant and now means) as if these details have remained constant for the past century and one-half would be naive. After all, the adjective "National" is itself a presentist recharacterization of the Faculty's earlier undergraduate curricula. Moreover, that epithet is a doubly misleading title for the McGill law programme. First, it suggests falsely that the curriculum has been tied to some abstract concept of nation and to the explicit product of the institutions comprising its political reflexion - the nation state. Second, it implies (again falsely) a curricular goal of educating lawyers to practice, or to work towards achieving, some uniform "national" law. Neither of these implications, I believe, has ever been part of the dominant ideology of the Faculty, even if both do accurately capture the personal commitments of at least some McGill professors and former professors. Yet certain ideas about legal education and certain features of the teaching programme do appear to have been present throughout the Faculty's history. These ideas and features, whatever their precise impact upon the curriculum at any particular moment, I take to be the defining characteristics of the McGill National Programme. They are: a view of legal education as more than a strictly professional endeavour tied to the study of local legislation and judicial decisions; an emphasis on what today we would call courses in legal theory, but which initially were seen as comprising the core subjects of the curriculum - Roman Law, international law, philosophy of law, legal history, legal bibliography, and principles of government; a vocation to law teaching and scholarship in both the English and French languages; the goal of teaching some concept of non-jurisdictional and non-temporal juridicity comprising both western legal traditions, as a model of a complete legal education; the desire, through the publication of English-language scholarship, to proselytize across common law North America the virtues of the civil law 3.
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