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Chapter 5: Reawakening
The Idea Resurfaces, part 1
A GRAIN OF TRUTH LIES in even the most hackneyed expression, and so it truly seems that the darkest moment in the struggle to create a university faculty of law in British Columbia preceded the dawn. Although the months immediately following the Kidd Report must have seemed unremittingly bleak and hopeless to members of the university community, relief (spelled "g-o-v-e-r-n-m-e-n-t g-r-a-n-t-s") was just around the corner. Professor Harry Logan, who served as university faculty throughout the Depression, has recounted this period in the life of the university:
Recovery came fairly quickly after 1933, though to those who waited it seemed an age in coming. In its annual plea for a more generous allocation of funds, the University, from 1933–34, had to deal with one of its own staff, Dr. G. M. Weir, Provincial Secretary and Minister of Education in the new Liberal administration of the Honourable T. D. Pattullo. In 1936–37 the Government grant rose to $350,000 and in 1937–38 to $400,000. Now University budgets included small grants for research and adult education, and in 1936–37 the Government made a special grant of $30,000 for adult education to supplement the larger grant from the Carnegie Corporation to establish a Department of University Extension. . . . In the 1937–38 session, the salary cuts were fully restored.
It did not take long for the idea of establishing a university law faculty to be revived. This new initiative took place in a better economic context and also seems to have benefited from the key role assumed by leading lawyers who enjoyed more influence in the law society and in British Columbia public life than had Arthur Whiteside. This observation is not in the least a slight to Whiteside or his sustained efforts. Rather, it merely notes that the new leaders of the cause included the formidable team of Senator J. W. de Beque (Wallace) Farris and his remarkable wife Evelyn Fenwick Farris. Politically astute, well-connected, powerful, and influential figures, the participation of Evelyn and Wallace Farris would have significantly bolstered any cause.
The first sign that something was again brewing in legal education came as early as 1935, a mere three years after Kidd had in effect recommended dismantling the university altogether. The Vancouver Daily Province of July 9, 1935, reported that the Law Society of British Columbia had appointed a committee to investigate the establishment of a faculty of law at the university. While this initiative did not immediately progress very far, in 1937 the law society appointed Wallace Farris and R. L. Maitland as a committee to work with the University of British Columbia board of governors on the creation of a law school. Given the status of the Benchers’ committee, a satisfactory hearing was no doubt ensured. If not by that reason alone, the presence of Evelyn Farris as an important member of the board of governors during the period from 1935 to 1942 probably helped.
Leonard Klinck, who, having survived the non-confidence motion of 1932, continued as university president, responded to this new approach from the law society with his accustomed enthusiasm, hard work, and encouragement. During the summer of 1937 he gathered "information . . . on the organization and conduct of Law Schools" which he duly forwarded, along with a "digest" of the calendars of Canadian law schools to Wallace Farris in September. The preparatory work President Klinck engaged in at this stage was both thorough and carefully executed. It probably had a tremendous influence on the design of legal education that was eventually brought into being during the watch of his successor, President N. A. M. MacKenzie.
Two crucial documents were prepared by President Klinck during this period. One, headed Faculties of Law and Law Societies in Canada, 1937–1938 by L. S. Klinck included summaries of law school calendars, some short law school histories, information on fees, and notes of discussions with university presidents. The second, headed Excerpts From Statement in Regard to Law Courses and Law Societies in Canada, dated May 1937 was, by and large, a testimony to the value of and the need for university education in law as a mandatory part of the training for practising lawyers.
As for the need for university education in law, both of Klinck’s reports reproduced a passage summarizing the approach to the education of lawyers in the three Prairie provinces—which were clearly thought to be a model more worthy of imitation than anything in existence in Ontario at the time:
19. Additional Notes Regarding the Faculties of Law in the Prairie Provinces.
. . . The Benchers in each of the three provinces encourage all students to attend a Law School and grant them certain concessions with regard to service in a Law Office. In each of these provinces the student proposing to study Law is required to spend two years in Arts before being admitted to the Law School. In consequence nearly all now spend an additional year and qualify for the Arts as well as the Law degree.
There can be no question of the great value of a Law School in maintaining a high standard of professional training, and in preserving and strengthening the great traditions associated with the administration of justice.
The Provincial Law Schools have centralized the interests of the profession, raised the standard of qualifications and have greatly strengthened the traditions of justice. This is of the greatest importance in a new country where meet the representatives of the most diverse racial and national traditions.
The mission of the law school outlined here is not limited merely to providing a more comprehensive training of the technicians of the legal system. The law faculty’s mission extends to a much larger vision of the role of law and lawyers in Canadian society. In preserving "the great traditions associated with the administration of justice" early twentieth century legal educators hoped to better inscribe Britishness on the tabula rasa of North America’s wide open and untamed spaces. By centralizing the "interests of the profession" legal educators hoped to create, artificially if need be, centripetal forces to counteract the centrifuge of Canadian society in which powerful forces pulled at faultlines of race, ethnicity, class, language, religion, and region. As it is reproduced in Excerpts from Statement in Regard to Law Courses and Law Societies in Canada, May, 1937, the passage quoted above is followed by a further statement of reasons why it was of paramount importance that Canadian lawyers be exposed to a rounded cultural education:
The Law students of today may become the political leaders of tomorrow.
If the closing of any school results in the failure of any considerable number of students to receive the benefit of a sound training, the economies effected may be secured at too great a price.
The cultural vision of legal education that this report reproduces is tremendously important. In the midst of the many Canadian and European upheavals of the 1930s, law school was quite literally seen as a crucial bulwark against all that threatened British civilization. One of the great achievements of the existing university law faculties was their contribution in precisely this area:
Not only have they created attitudes and intellectual interest among thousands who now, as graduates, are in positions of influence in their communities; not only have they safe-guarded the mechanics of civilization by maintaining the standards of entrance to the professions which are significant in our modern civilization; but, even more, they have quietly but insistently emphasized the permanent values in a time and in an environment where the material might be given undue prominence.
| The Vancouver Courthouse provided an important focal point of legal education in the province in the years before a university law faculty was established, 1923. |
Theoretically, the socialization, intellectual training, and acculturation that were considered necessary in order to create lawyers who would serve to advance both the interests of the larger "civilization" they had inherited and the "permanent values" it embodied might be achieved in other ways. In England, for example, the ancient lawyers’ guilds known as the Inns of Court collectively provided each of socialization, education, and acculturation through institutions that more accurately reflected medieval than modern social and political structures. No such alternative mechanisms presented themselves as reasonable alternatives in western Canada, however. Excerpts from Statement in Regard to Law Courses and Law Societies in Canada, May, 1937 recognized this absence and emphasized the indispensable role of the university under the conditions prevailing in the West: "The Universities safeguard the standards in all phases of professional life in Western Canada. No other institution in the province could, or would, safeguard the standards which are fundamental to present day civilization." Nor, according to this document, did professional schools such as the Vancouver Law School, Osgoode Hall, or even professional law schools administered jointly with a university provide reasonable stand-ins for a university law faculty. Despite actual knowledge of the precise state of legal education across Canada, the document asserts that British Columbia and Manitoba have "no School of Law" and continues: "The absence of a provincial school under present conditions practically means that about nine-tenths of the students receive no professional instruction."
This theme of the inadequacy of both Osgoode Hall and the Manitoba Law School is important. It must be recalled that university legal education had no "taken for granted" quality about it during these years. The University of Toronto, true enough, had a law department, but its degrees were unrecognized by the Ontario (or any other) law society. Manitoba had experimented with a programme of legal education much like that of any university law faculty, only to cut it off when its imaginative and energetic dean resigned to pursue a career in public life. The Manitoba programme, after a brief flourishing, was reined in so completely that it resembled, in all important respects, the Vancouver Law School as much as any other. The remainder of the Prairies had attempted to emulate American developments that led in the direction of full-time, post-graduate university education in law; but Canada’s other powerful Imperial source of culture and structures, the United Kingdom, resolutely refused to have anything to do with university encroachment on the educational prerogatives of the various lawyers’ guilds. Ontario and Manitoba had each seen rancorous divisions emerge over the nature of professional qualification, and British Columbia lawyers would have no reason to wish to take up the side of academic lawyers who, seemingly, had caused so much unnecessary trouble in these two jurisdictions.
Therefore, the information President Klinck gathered for the benefit of his university colleagues and the law society Benchers was resounding in its repudiation of the paths followed by the two central Canadian common-law provinces. As for the professional trade school maintained by the Law Society of Upper Canada at the time, the document records simply:
Notes on Osgoode Hall. Based on Interview with Four University Presidents.
All the Presidents interviewed were of the opinion that the system in Toronto is unsatisfactory.
The case against the Osgoode Hall model was relatively clear, not least because, despite two decades of experience, the British Columbia Benchers had not yet been able to produce a programme at the Vancouver Law School even remotely approaching the standards of Toronto’s trade school in law. Manitoba’s compromise solution to the puzzle of legal education, however, was more imaginative than approaches taken elsewhere and did, in theory, hold out the promise of providing the best possible integration of the strengths of each of the university and the practising legal profession. The Manitoba Law School was created in 1914 as a joint undertaking of the provincial law society and the University of Manitoba, and was managed by a board of trustees representing each of the parent institutions. As so often happens, though, the attempt to secure the advantages of two distinct traditions ended up rather less successfully than its creators had hoped. President Klinck seems to have enquired fully of the situation and carefully noted the objections raised by President Sidney Smith (also a former university law teacher) to the Manitoba compromise. Klinck’s notes reveal Smith’s comments to have been both frank and strongly negative:
16. Notes on the Manitoba Law School (University of Manitoba and the Law Society of Manitoba) Based on Interview with President Sidney Smith.
President Smith was not very enthusiastic regarding the Law School in the University of Manitoba. The number of full-time men is two, and this the President regards as the irreducible minimum. . . . He is strongly of opinion that the most effective way to organize a Faculty of Law is for the University to assume the responsibility outright, since he believes that what is gained in interest by the Benchers’ contribution may easily be lost in efficiency because of more or less compromise arrangements with regard to appointments, salaries and courses.
The University of Saskatchewan president, W. C. Murray, was more enthusiastic about his faculty and "more hopeful than President Smith that a good Department of Law could be constituted and carried on at a nominal expense". He emphasized, however, the importance of a university law faculty having its own library ("access to the Benchers’ Library . . . generally works out satisfactory for a time, but the general experience is that the Benchers object to students using books which are needed by them for immediate reference"). Both Smith and Murray recommended that the minimum number of volumes in a university law library would be eight to ten thousand volumes. President W. A. R. Kerr of the University of Alberta reported that their law library was valued at $10,000 and that annual library expenditures "not including gifts which are considerable, is $200.00".
By and large Klinck’s enquiries in 1937 and 1938 reinforced the principle messages that had been absorbed in British Columbia in 1923:
All of President Klinck’s findings reinforced the hand of those within the law society, including Wallace Farris and his brother Wendell Farris, Tom Ladner, Sherwood Lett, and others who strongly endorsed the creation of a scholarly faculty of law. This support in turn laid an important—crucial—foundation for the design of a law faculty compatible with MacKenzie’s own predisposition (coming, as he had, from an earlier career as a university law teacher). It also probably helped immeasurably in preparing the ground for the Law Society of British Columbia to welcome the appointment of a thoroughly scholarly individual as the faculty of law’s first dean when the time came.
Most of President Klinck’s background research had been completed by the time a university committee was appointed on December 22, 1937, to confer with a law society committee "in working out the details of the proposed Faculty of Law". It is also quite likely that informal consultations and discussions had by this time produced consensus as to how "the details" should be worked out. In any event the board of governors appointed a committee of Sherwood Lett (board), chair; A. E. Lord (senate); Dean J. N. Finlayson (faculty); and President Klinck. As chair of the new committee, Lett was almost immediately provided with a copy of the Faculties of Law and Law Societies in Canada, 1937–1938 report.
Copyright © 1995 The University of British Columbia Faculty of Law. All rights reserved.
Please address questions or comments to Professor W. Wesley Pue, pue@law.ubc.ca
