UBC Law: History

Chapter 4: Toward a Law Faculty

Preliminary Consultations and Cultural Vision

By the time the senate had approved the appointment of a committee to investigate legal education, correspondence had begun to flow into the university from legal educators and university presidents across Canada. Their advice likely had considerable influence on the attitudes of the British Columbia university president, the senate committee, and, indeed, law society activists who worked toward establishing a law faculty both in 1923 and in later years when university legal education was again considered.

Pioneering law teacher and classicist Arthur Moxon wrote to Klinck to explain the state of legal education in Saskatchewan. University of Alberta president, Henry Marshall Tory, wrote to report on law teaching at his university, including, for good measure, a personal endorsement of the idea of university legal education. Tory’s university, like Moxon’s, was graced with one of the cutting-edge Canadian law faculties of the era. "I hope," he wrote, "the time is not far distant when the lawyers will be wise enough to agree that no body will be permitted to practise Law who has not taken a full college course. I cannot understand why they regard college education as so essential even for a school teacher and yet are willing to allow men to become lawyers by such information as they can pick up around a lawyer’s office."

The McGill law dean, Herbert A. Smith, wrote a letter that was virtually a manifesto for twentieth century reform of legal education. His response to the University of British Columbia’s enquiry went far beyond mere reportage or idle encouragement to outline an entire philosophy of legal education. Smith addressed three crucial aspects of legal education: faculty, students, and curriculum. On all fronts he recommended the development of a programme that would fully reflect the state-of-the-art as it was then understood by thoughtful North American observers of legal education. Regarding faculty, Smith endorsed the then-current position of the "American Association of Law Schools" that, although "some faculty who work mostly in legal practice" would be needed, a minimum complement of three full-time faculty members was essential if a credible university programme was to emerge. Like Tory, Smith wished to transcend entirely the traditional, limited demands made of trainee lawyers. "The student," he said, "like the professor, can only do the best kind of work if he gives substantially his whole time to his academic studies. The attempt to combine the work of the law school and that of the office means in practice that neither is done well." Moreover, again reflecting current thinking of leading legal educators within both the American Association of Law Schools and the Canadian Bar Association, Smith recommended that the academic prerequisites to legal study be set at a high level: "I believe that you would do well to begin at once with insisting upon two years in Arts . . . it is not possible for boys to study law with advantage if they are intellectually immature." He encouraged the University of British Columbia to move toward a school in which full-time students of superior qualifications would be taught intensively by full-time faculty.

This direction in itself would have powerfully shaped legal education. Smith also advised Klinck that the university should be vigilant to fully protect its independence in all of its dealings with the legal profession. He took care to caution that "[t]he University should retain entire control of the staff, the curriculum, and the examinations" even though it "should always be ready to consult the judges and practitioners upon matters of common interest". This moral may have been derived from his own experiences dealing with the organized legal profession in Quebec. It was certainly a direct warning that the university should neither permit its law teaching arm to become entirely subjugated to the law society (as at Toronto’s Osgoode Hall) nor to fall too closely within the professional orbit (as, perhaps, was the jointly administered Manitoba Law School).

Over and above whatever abstract principles of university autonomy may have been important to Smith, he likely had a pressing reason for counselling against permitting practising lawyers or judges too great a role in the university. The possibility of developing a form of legal education adequate to meet the social needs of the day would, he thought, be severely compromised—perhaps even entirely subverted—if the legal profession was allowed too strong a role in the design of either curriculum or pedagogy. He seems to have thought, as did the American jurisprude Karl Llewellyn, that lawyers should be "on tap" but not "on top" in developing the university curriculum in law. Smith whole-heartedly endorsed the model curriculum developed only a few years previously by the Canadian Bar Association’s ground-breaking committee on legal education:

The Faculty would be well advised to conform to the general lines of the curriculum suggested by the Canadian Bar Association. In this connection I should like to emphasize the importance of keeping the cultural part of the training well to the front during the whole course by devoting adequate attention to such subjects as international law, constitutional law, legal history, and theoretical jurisprudence. If possible, facilities and encouragement should be offered to students to interest themselves in Roman Law and in the civil law of Quebec. It must be remembered that under modern conditions a law school is not only concerned with the training of practitioners. Its graduates, more than those of any other department, enter Parliament and the public service, or become prominent in other walks of life. This throws upon the Faculty a special obligation towards the country at large, which needs highly educated men as leaders and legislators. It is therefore important not to allow the more cultural part of the teaching to be crowded out by trying to fill the curriculum with the greatest possible number of purely technical courses.

The "cultural" education of lawyers was only in part about course content and the structure of education. The ideal of training "highly educated men as leaders" also required the adoption of an appropriate teaching method. Smith advised Klinck that "[t]he formal dictation of notes" was "a very insufficient method of teaching law" and endorsed "the informal and conversational discussion of practical problems between a teacher and his class, which Americans call the ‘case method’". Entirely consistent with his stated objectives of producing cultured, well-rounded university graduates to work in law, the McGill dean recommended that the law and arts faculties of the university should be closely integrated.

This appeal to a cultural vision of professional education would have been immediately understood and warmly received by scholars at the University of British Columbia in the 1920s. As part of an ongoing process of identifying new and useful ways in which to adapt an ancient European idea—the university—to the peculiar needs and expectations placed on public institutions by a modern North American community, the early University of British Columbia was engaged in an extended process of study relating to business education. The similarities in mission and educational vision shared by business and legal educators of the era is striking. During the same months that active consideration was being given to founding a law faculty, initiatives taken by Theodore Boggs in relation to business education received positive review in the Preliminary Survey of Higher Commercial Education Made by the Associated Boards of Trade of British Columbia. That document outlined a continuum of educational programmes that also reflected a natural evolutionary process. According to the model relied on in this report, primitive professions were educated by apprenticeship alone but eventually developed organized schemes of guild training in order to more efficiently communicate systematized knowledge. From there the next stage through which progressive professions passed through the next stage, developing a "broad" education based on "scientific knowledge". The final stage was achieved when the particular field of knowledge came to be fully appreciated as "part of the general civilization or intellectual wealth of the world". This "cultural" stage represented the pinnacle of practical learning and a goal toward which the most worthy of callings strove. When McGill’s dean of law offered advice about the importance of developing "cultural" education in law, the faculty and administration at the University of British Columbia would interpret his words through this ideological framework. "Law", in these terms, was far too precious a cultural heritage to be left in the custody of ordinary lawyers: far too many of whom were uneducated, trained only by "apprenticeship", or at best exposed to guild training. Smith’s reference to the need for "cultural" education in law and his firm view that lawyers should be kept at arm’s length when it came to formulating either law faculty curriculum or educational method would have been well understood and taken to heart by thoughtful educators at the University of British Columbia at the time. It was, as lawyers like to say, "on all fours" with everything else they understood about their mission as university teachers.

This message was strongly corroborated and reinforced by further advice from University of Alberta President Henry Marshall Tory. His advice too would have been very influential. Tory, a distinguished educator in his own right, resided over the provincial university in the next province, an institution that had fostered an innovative Canadian law faculty. Klinck reported on Tory’s views in an extensive internal document headed Data Re: Law Faculties in Canadian Universities: "President Tory went very fully into the whole matter himself and strongly urged that a high academic standard be set and that if possible, the course in law be related to what he terms a ‘double course’, that is, with Arts." Tory too was apparently persuaded of the virtues of the "case method" of legal instruction. Klinck reported that "[h]e was evidently most favourably impressed with the Harvard system and suggested the desirability of having at least one Harvard trained man on the staff". The possibility of appointing Henry Angus as dean of a new University of British Columbia law faculty had been discussed and the discussion of his suitability as a law teacher reveals a great deal about Tory’s commitment to what we now call the Socratic method of teaching law. Angus, it will be recalled, held an arts degree from McGill and had earned two first-class degrees in law at Oxford before being admitted as a Barrister-at-Law of the Inner Temple. He was known to Tory, who had appointed him to head the law department of the Khaki University in 1919, and had approached him about deanship of the University of Alberta Faculty of Law. It seems, however, that by 1923 Tory had formed the opinion that, no matter how fine a scholar Angus might be, his English education was something of an obstacle to be overcome if he was to be a suitable choice to lead a North American law faculty through the twentieth century. Klinck’s notes are brief and admittedly somewhat cryptic. They record only that Tory "knew something of Mr. Angus and thought that a man of his training would, especially if it were supplemented by a course in Harvard, make him extremely valuable, if his professional experience had been wide enough to justify his appointment". For Tory, in other words, the case method was the sine qua non of a credible legal education and the case method was synonymous with Harvard. An Oxford education could be overcome by gaining some direct exposure to a leading American institution of legal learning.

Finances

Programme was clearly important to the administration of the University of British Columbia. Klinck and those around him were determined to ensure that any scheme of legal education developed at the university should be well-thought out and thoroughly reputable by the highest standards prevailing in North America. The problem of impecuniousity had to be confronted, however, and this was a matter of the first importance. The financial calculations the university entered into are revealed in an internal memorandum President Klinck generated in March 1923. Projected income for the new faculty of law was calculated as follows:

Grant of $2,000 for at least one year from Benchers
Estimated number of students—60
Suggested fee $100
Mr. Whiteside stated that in 1918 there were 200 students enrolled; 1919, 31; 1920, 42; 1921, 22; 1922, 23.

From this income (which would come to $8,000, including the once-off grant from the Benchers) it would be necessary to find a dean’s salary. In accordance with advice Klinck had received from elsewhere in Canada, this was projected at $6,000 per annum. President Klinck’s March 1923 memorandum assumed that volunteer lecturers drawn from the practising legal profession would help to round out the faculty’s offerings. The budget was tight even allowing for the contributions of services by volunteer lecturers. Other costs, including any for books, office accommodation or teaching space, administrative support, and contributions of teaching resources by existing University of British Columbia faculty would have to be met from the small margin left over and above the dean’s salary. The university may have intended to absorb some overhead costs from its larger budget, but no matter what such assumptions might have been made, these financial projections allowed only a narrow comfort zone for the university.

From its side, the law society could not have found a more advantageous arrangement. A grant of $2,000 to the university was a relatively small commitment even if, contrary to what university officials had been told, it was to transform into an annual obligation (the Benchers in 1914 by comparison had authorized an expenditure of $2,500 per annum on lectures). Some such scheme would have permitted the law society to simultaneously off-load the costs of fulfilling its moral and statutory educational mandate to another institution, significantly increase the standards of legal education in the province, and relieve itself of an administrative, managerial, and political headache. In light of the small margin of error allowed for by the administration’s budgetary projections and the university’s own precarious financial situation, Dean Brock thought it prudent to launch a university law faculty only on the understanding that "in the event . . . that sufficient funds were not available after the faculty had been established, the Benchers should take the school over and relieve the Board [of Governors] of all moral obligations to the students". President Klinck’s notes indicate his understanding that "Mr. Whiteside and Mr. Killam considered this a reasonable suggestion".

The 1923 Apparition

With these financial arrangements, understandings, and contingency plans in place, the university and the law society proceeded rapidly to finalize the arrangements that would bring a faculty of law into being. There was no reason not to do so, as the development would simultaneously advance the university’s mission and further the professional mandate of the law society while relieving it of a sophisticated educational endeavour that it was ill-equipped to manage. The law society would benefit from a cost-effective, professional educational programme, while the university would be able to expand its offerings in an other wise bleak period. In developing a law department, the university could count on significant support from the local legal community to enhance its salaried teaching staff, confident also that its graduates could reasonably hope to move into a practical career. In today’s parlance, developing a law faculty was a win-win situation. Both sides of the negotiations apparently appreciated it as such. But the window of opportunity was narrow. Whiteside advised the University of British Columbia senate that political processes within the law society threatened to disrupt the progress that had been made. He reported that a Benchers’ election was imminent and that "[t]he personnel of the Benchers may be changed as there seems to be some difference of opinion between the Benchers and the ordinary members of the Bar".

Whiteside sketched out his vision for a faculty of law early in 1923. His comments were noted in a University of British Columbia memorandum headed Senate Committee on Establishment of a Faculty of Law, which reported that the law society sought to develop university education as a significant part of professional qualification, not out of any selfish motivation, but for the betterment of the profession:

The present members were not afraid of the competition which came to them as the result of training students in their offices, but they felt that it was increasingly desirable that all law students should have a University education. He also thinks that a University connection would attract a better class of students and would probably at the same time, increase the numbers.

Cecil Killam, chair of the senate committee, interjected his own view "that many members of the Society still regard law as a business and not as a profession and that connection with the University would tend to overcome this handicap".

The Benchers hoped to bring about an arrangement in which attendance at the law faculty would be compulsory for articled clerks in Vancouver and environs but not for "Victoria and up country" students, who would be left to the traditional means of qualification. The most effective means of implementing university legal education without radically disrupting existing statutory and regulatory frameworks would simply be for the law society to recognize time spent in full-time attendance at the university as equivalent to time in articles and this, apparently, is what was envisaged in 1923. The Benchers were clearly of the view that students at the proposed university law faculty would continue to be subject to law society rules and regulations, and Whiteside advised the senate committee that the cost of legal education would be higher than that of other sorts of university education because "law students were not permitted to earn money during the holidays". There was also a discussion of the suitability of one "Mr. Myers" for appointment as dean of law (this may have been E. C. Mayers, a leading British Columbia counsel who had edited a British Columbia case digest from 1914 to 1916).

In any event, the matter proceeded rapidly. On March 26, 1923, Cecil Killam presented "a statement on behalf of the Senate Law Committee in respect to the proposal for the establishment of a Faculty of Law" to the board of governors. The board immediately appointed "Mr. Justice Murphy and Mr. Reid be a committee to investigate the matter further and report at a subsequent meeting".

A subsequent report of the senate committee on the establishment of a faculty of law reveals that members of the committee believed the creation of a law faculty to be imminent. Cecil Killam, as chair, reported that "with the assistance of R. M. MacDonald, Esq., the Dean of the Vancouver Law School, A. M. Whiteside, Esq., representative Bencher of the Law Society, and the excellent material furnished by the President, the committee had formulated a plan for a Faculty of Law without additional expense to the University". This report had been duly referred to the board of governors and it appears that the committee expected a fairly rapid formalization of arrangements that had been substantively agreed upon between university and the law society:

This plan your Committee presented to the Board of Governors, which then appointed a committee from its embers to confer with the Benchers of the Law Society for the purpose of arranging a contract for an annual contribution from the Law Society.

Upon the execution of the contract as above and the establishment of a Faculty of Law, the Board will fix the annual fee for students. . . .

The Senate can take immediate action upon report from the Board of Governors.

At this time the projected educational arrangements involved "a permanent dean appointed with one or more paid assistants including at least one from the present staff of the University, other lecturers to be voluntary, with the free use of lecture rooms and the Law Library in the Court House in Vancouver". This report was received and adopted formally by senate on May 9, 1923.

Everything was primed and ready to go. All that was necessary for the immediate creation of a law faculty seemed to be in place, the entire process having taken well less than a year from Whiteside’s first approach to President Klinck in August 1922. Financial arrangements were agreed upon, an academic plan sketched out, and mutually beneficial cooperation between the law society and the university agreed upon in principle. It was distinctly possible that a university faculty of law might emerge in time for the fall term of 1923.

The entire arrangement was scuppered by the law society. Having initiated the discussions and pursued them with a good deal of enthusiasm, the Benchers simply walked away at the last minute from the agreement they had sought. The reasons for this reversal remain mysterious. The Canadian Bar Association’s committee on legal education reported simply that after considerable discussion with the law society, the university had indicated that, despite its wish to begin law teaching, it had decided not to do so until funds for the purpose were available. This statement is a somewhat misleading presentation. University records reveal another story. The board of governors learned from its law faculty committee on July 30, 1923, that, despite previous assurances, "the Law Society, after fully considering all the circumstances, had reached the conclusion that it was not advisable at the present time to proceed with the matter". Given this, the university senate was formally advised in the autumn that the board of governors thought it "inadvisable to proceed with the matter of such a Faculty at the present time".

Chapter 4 continued