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Chapter 7: Law’s Content

Curriculum

The new law faculty marked a turning point in what students were expected to learn as well as how it was taught. The early Curtis faculty merged a distinguished "cultural" tradition in legal curriculum (that had roots in Prairie Canada and Dalhousie’s law faculty) with a more contemporary vision of law and law’s role in Canadian society. The objective was to fully take on board the post-New Deal welfare state. Courses and course content were added to the traditional "cultural" curriculum in order to meet this new social reality.

The cultural tradition holds at its centre a vision of lawyers and lawyering that goes beyond mere technical competence to cast lawyers in the role of dedicated servants of the public interest. Richard Chapman Weldon, the legendary founding dean of Dalhousie’s law school, is generally credited as the founder of this tradition in legal education. He described his objectives as follows:

In drawing up our curriculum we have not forgotten the duty which every university owes to the state, the duty which Aristotle saw and emphasized so long ago—of teaching the young men the science of government. In our free government we all have political duties, some higher, some humbler, and these duties will be best performed by those who have given them most thought. We may fairly hope that some of our students will, in their riper years, be called upon to discharge public duties. We aim to help these to act with fidelity and wisdom.

Weldon established a tradition that Dalhousie Law School long considered its distinguishing mark: a curriculum that John Willis said mixed "political science, cultural or public law (the labels are interchangeable) subjects, and professional or strictly legal ones". The core courses of "cultural" legal education in this first generation were constitutional history, international law, and conflict of laws. The "standard curriculum" initiated during the First World War by Prairie lawyers and formally endorsed by the Canadian Bar Association shortly after the end of hostilities included two other equally "impractical" subjects (jurisprudence and legal ethics), while the Manitoba Law School folded Roman law and ancient law into the "cultural" mix during its brief golden age.

Regardless of their views on the merits of any individual course, legal scholars in Canada have always felt a great commitment to this tradition as a whole. Despite his belief that adaptation was urgently needed at mid-century, Curtis fully appreciated the merits of the tradition. Fifty years later he recalled Dalhousie Law School’s "stimulating and satisfying intellectual atmosphere" and paid tribute to its success as "a house of intellect". The cultural tradition was something to be built upon, not sacrificed to newer, more fashionable gods.

By good fortune, the law society’s committee fully agreed. As a result, the common division between "town" and "gown" on matters of orientation or curriculum was largely avoided and the full-time faculty was not obstructed in its pursuit of scholarly objectives. Many Vancouver lawyers had attended the Dalhousie Law School and reported favourably of the experience. For its part, the law society’s legal education committee was composed of men who had experienced a scholarly education in law. Senator Wallace Farris, the chair, was a graduate of the University of Pennsylvania and three Rhodes scholars (A. W. R. MacDougall, Sherwood Lett, and Dal Grauer) served with him on the committee. A further committee member, Reginald Tupper, had graduated from neither Oxford nor an elite American law faculty but was "one of the most cultivated lawyers in Canada". Dean Curtis recalled the committee’s views about the old approach to legal training. They thought quite simply that:

[t]here wasn’t enough there . . . it wasn’t intellectually challenging. There is no doubt about that, and I think these men felt that we need it now, the time has come, 1945, . . . let’s get going on this thing, because we know that people trained, educated I would prefer, rather than trained in their early years for the law if they have not only studied a number of what one might call the cultural subjects, but also the atmosphere of free inquiry, of deep thinking that was represented by legal research. The sort of thing that goes on in universities and the relation of law, above all, the relation of law to its social context. Law is not just a bunch of rules, its more than that. It is a living thing. It’s part of human life and human experience. I think they felt that, that you get more of that in university atmosphere than you possibly could under the old system.

The "cultural tradition" involves much more than simply supplementing a narrow hard-nosed practitioner’s education with a few "softer" courses of marginal relevance to legal practice. It is, however, much harder to identify, describe, or evaluate the spirit of cultural education in law than it is to identify the courses that conventionally mark its presence. Features that Curtis hoped to transplant from Dalhousie included such intangibles as an intellectual orientation, "openness" of enquiry, and an approach to legal issues that was both "critical and creative". His view was "that we needed a variety of approaches. The wider a variety, the better, not only in terms of doctrinal approach, philosophical approach, but also of course, in terms of countries. We always had a great mixture here of people from various cultural backgrounds, and it is good for us." The real presence or absence of a "cultural curriculum" in any faculty’s offerings cannot be determined merely by reviewing a list of course offerings. Any legal subject might be taught in an intellectually ambitious, progressive fashion that locates law in its social context and addresses policy as well as rules. Equally, any student knows that subjects apparently loaded with cultural content and intellectual glamour can, in the wrong hands, be stripped altogether of scholarly content or even intellectual interest. Dean Curtis explained to an interviewer in 1995 that the cultural curriculum is:

not just a matter of subjects, I am convinced, that’s part of it, I mean. It is the approach and manner of presentation by the instructor, so forth and so on. That’s terribly important. . . . I am a little concerned that we not tie ourselves down in our thinking just through a formal curriculum. . . . There is nothing final about the law, the law moves as society moves and that was getting to be more and more the understanding of lawyers in the Thirties even.

As early as the 1930s even tort law (surely as conventional a doctrinal offering as exists on the law faculty calendar) could be made into an intellectual offering that advanced both the traditional goals of the cultural curriculum and the more contemporary "legal realist" philosophic vision that was increasingly bound up with it. Dean Curtis explained that it was apparent to legal scholars in the 1930s that a decision such as Lord Atkin’s pivotal judgment in the negligence case Donoghue v. Stevenson conveyed a "conception of the essential movement of the law in response to new social conditions. And everybody had read Lord Atkin’s judgment, no matter who you were. The impact of that case is enormous, of course. This is the sort of thing that we were thinking about." The mission of legal education was to convey practical learning in such a way as to provide future legal professionals with an extra edge. Very fine lawyers are distinguished from the mediocre, in Curtis’s assessment, by something more than hard work, "clear minds", and "superior intellect"—they’ve "got that little extra thing which sees law in its context of life, and I think that makes a difference. Certainly it makes a difference in judges of course."

The difficult question confronting legal educators in 1945 was how to best adapt the "cultural" tradition to the conditions of a new era: post-Depression, post-Nazi, and post-Hiroshima. Richard Weldon’s Dalhousie programme had its origins in the nineteenth century, while the Canadian Bar Association’s standard curriculum had been developed during the period of the First World War—both radically different times from the mid-twentieth century. It was clear to many that the passage of time and the great events of the twentieth century had rendered curriculum reform necessary. Even during his last years in Nova Scotia, Curtis had worked with Acting Dalhousie Law Dean John Willis to prepare for post-war curriculum reform. This preliminary work at Dalhousie involved, Willis said, "inducing a knowledgeable chartered accountant to give a stripped-down rudimentary course on taxation, and subjecting, in a preliminary way, the curriculum to the first critical review it had had for many years".

The curriculum that emerged at the University of British Columbia after the Second World War reflected both fidelity to an inherited model and the contemporary political views, idealism, and utopian aspirations of a generation of legal academics. Not that party politics as such were foisted upon unsuspecting young minds—"political" beliefs in this narrow sense had to be politely checked at the door of the mid-century legal academy. Dean Curtis was himself convinced of this propriety. He told an interviewer in 1995 that a top-flight lawyer rises above partisan, political considerations. Equally, political belief:

did not affect a professor’s views, the good professors. They rise above that you see. They rise above partisan politics, they can put partisan politics in their place and keep them there. It’s the second raters that get muddled up in their minds.

At a level deeper than the superficial matter of party affiliation, however, a widespread political consensus informed the Anglo-Canadian legal academy. Broadly, this group was "liberal", Canadian nationalist, and "legal realist". A generation of intellectuals who had lived through the Great Depression had little faith in the beneficence of an unregulated economy’s "invisible hand". Part of the "New Deal" generation, they were confident that the future would involve a combination of private business, state regulation, and socialized enterprises. Further development of the nascent welfare state seemed inevitable and desirable. Regardless of party political affiliation, Canadian scholars "were all a little bit touched", Curtis recalled, "by an appreciation that government no longer could merely be the policeman and the soldier, that there were duties of government that governments should undertake". They believed that constitutions and laws exist to serve people, not vice versa; that Canada should be fully independent of Britain; and that a new world order based on activist governments and the rule of international law would and should replace the old. In matters of legal philosophy, Canadian scholars generally steered clear of the rhetorical vulgarity that sometimes characterized "American legal realism", but they took its central message on board: they knew, to borrow a phrase, that the state of a judge’s "digestive system" affects case outcomes at least as much as abstract legal rules.

It followed that an adequate education for lawyers required developing an understanding that legal doctrine is only one part of "law" in the real world: "policy" as well as legal rules needed to be understood. Their "great heroes", Dean Curtis said, included avant-garde American legal thinkers like Holmes and Brandeis. This generation of Canadian legal educators harboured a deep suspicion that important judges (particularly the Watson–Haldane privy council) had subverted the Canadian constitutional scheme in furtherance of an outdated, damaging philosophical commitment to nineteenth-century laissez-faire. Their vision of law, not as rules in dusty books but as a lived process had significant implications when it came to thinking about what lawyers-in-training need to learn. Dean Curtis explained:

What’s happening is we’re looking at the present-day world, we’re not tying ourselves to the old. . . . law is a live discipline. It doesn’t just exist in books and old ideas. . . .
And another point, . . . I think that we were all very conscious of the fact that the law was entering a period, a new period of development in its long history. Up until then, the bulk of the law had been created by decided cases, by judges in other words. . . . This is primarily today the age of the common man. There is no doubt about that in my mind. . . . that being so, it means that the majority, that public opinion has a much greater voice in the law than it ever had in any history . . . public opinion, whether represented by the majority or by . . . special interest groups, has taken over a great deal of the crafting of the law. In other words, legislation.

In practical terms, the cultural curriculum was carried forward in British Columbia in two principal ways. Faculty appointments were crucial. Care was taken to hire as full-time faculty only individuals whose backgrounds and qualifications suited them to teaching in the required "grand manner". It was important, too, that the new professors enjoy working conditions that would make it possible to engage in the demanding and time-consuming task of producing scholarship. The new dean worked to increase the full-time faculty complement to a size sufficient to create an intellectual "critical mass" that was capable of meeting its teaching obligations while holding classes to a moderate size and leaving time for research and writing.

As for the formal curriculum, the early faculty took its lead from the old Canadian Bar Association "standard curriculum". That programme was readily available, widely accepted, and had an appropriately intellectual orientation. It was brought up to date by adding three courses that spoke to both contemporary conditions and the changing social functions of law in Canadian society: income tax, municipal law, and labour law. Beyond these subjects, one longstanding marker of the cultural tradition took on a heightened significance in the years immediately following the Second World War: public international law moved to a place of pride corresponding with Canada’s role at centre stage in the creation of a post-war world order. English legal history was taught in the first year.

By some quirk of human nature, educational innovations that seem dangerous or even foolish when they are introduced often become quickly integrated into the mainstream. One generation’s successful curricular revolution quickly becomes another’s hallowed and timeless tradition. So it was with Blackstone’s eighteenth-century lectures on English law, Harvard’s nineteenth-century case method, and the Canadian Bar Association’s early twentieth-century "standard curriculum". So too, not surprisingly, with the University of British Columbia’s mid-twentieth-century innovations. Very few lawyers now consider subjects such as conflict of laws, tax, labour law, or municipal law as anything other than important, mainstream, practical subjects. They are commonly understood now to be the sorts of things that every lawyer should know. These courses have so successfully taken root that their origins as part of a "cultural" curriculum or "law and society" programme have been obscured. In 1945, however, they marked a significant transformation that, according to Dean Curtis, "carried legal studies beyond old limits".

Labour law was put on the curriculum, Dean Curtis said, in "response to a social need to have disciplined, deep thinking about one of the great social problems of our age, the relations of employer and employee in a unionized society". Labour law was intended to showcase the vitality of law in action. The new subject merged social science with law and was noted for its social relevance, but such characteristics did not immediately endear the subject to all established lawyers in 1940s Vancouver. Curtis recalled:

I can remember when I submitted the second year curriculum to the Bar—(you see, I always kept very close contact with the Bar)—I remember one member of the Bar said, "Well, I notice here that you have Company Law for two hours a week all through the year," which was standard. But, he said, "I see Labour Law, also two hours a week throughout the year." He said, "Do you think that’s right?" "Oh," I said, "That’s the trend of the times. We’d like to institute this and I’ve got a man coming who is an expert on it."

So justified, the new course took its place on the curriculum and soon became a mainstay of legal training.

Similarly, income tax law was an unorthodox addition to the legal curriculum in 1945. At the law faculty’s formal opening ceremonies in 1946, Chief Justice Wendell Farris identified taxation as one of the "great domestic fields which belong primarily to the lawyer but are not occupied by them". Dean Curtis shared the Chief Justice’s belief in the importance of tax law but was inclined to emphasize the intellectual reasons for its inclusion rather than just the market potential it then seemed to hold. "The reason I insisted on putting Taxation on," he said in 1995, was "because that is one of the social facts of the modern workman of Canada." Although income tax had originally been introduced as a "temporary" measure:

[f]rom the point of view of the practitioner, it was going to be a very necessary part of his practice if he was going to advise people on their wills, . . . Companies, commercial transactions, all the way through. . . . and I knew it [income tax] was going to be permanent for another reason. My generation . . . were convinced that we should have what is today called the welfare state. We didn’t think of it in those terms. The welfare state is rather, we thought of it in terms of a more caring society. Old-age pensions, unemployment insurance, widows’ pensions. These were the sort of things we felt fit within a modern society, and it’s got nothing to do with politics, . . . we all believed in this, and some of us had no politics and we still believed, that was . . . how it was going to be financed, the Income Tax, was the clue there . . . I thought it had to be taught. It was a proper subject to be taught and it turned out to be enormously popular, and of course enormously valuable taking it to the lowest level. Can’t really practice law without some knowledge of income tax law in this modern age.

Despite obvious and very practical reasons for including a course on tax law, this course too was a significant innovation in curriculum. Tax "was then regarded as an extremely exotic, specialist field". Although John Willis had introduced such a course at Osgoode Hall, no other university law faculty in Canada taught it at the time.

Unlike tax, public international law had a long-established and secure place within the cultural curriculum. Speaking at the official opening ceremonies for the new faculty, Chief Justice Farris said that important new areas were opening up to lawyers in 1946. "[O]ne of the most important and interesting of all these fields," he said, "is the study and practice of international law." Dean Curtis thought that international law, like other components of intellectual legal education, "opens your window to the outside world" and broadens the mind. There was another, more immediate reason for making the subject a compulsory full year course. Asked by the distinguished Harvard philosopher of law, Lon Fuller, why the University of British Columbia had, uniquely among faculties of law in common-law North America, given international law such heavy emphasis, Dean Curtis replied: "Well, we started, you must remember, at the end of the War, that was a brand-new law school and it was appropriate, it seemed to me, that these men who a few months before had been fighting, some of them dying, for the sake of what? A New World Order?, should want to do something about it in peace time." The relevance of the subject was not lost to the first generations of students. Diana Priestly recalled having been educated throughout by "people who had all been part of the growth of the League of Nations. . . . They believed that it was possible to have the perfect world with no war and that spirit, I think, was passed on to a lot of us if we were open to it because they were so filled with it."

The post-war period’s pervasive sense of optimism and the deeply held belief that law had an important role to play in bringing about a better future was reflected in a national symposium on legal education (the first ever at a Canadian university) sponsored by the University of British Columbia Faculty of Law in 1949. This symposium brought together leading Canadian and international law teachers, including Dean Cronkite (College of Law, University of Saskatchewan), Dean Wright (University of Toronto School of Law), Dean Vincent MacDonald (Dalhousie Law School), and Dean Griswold of Harvard. A published Summary—The Symposium in Retrospect emphasized the need to carry Canada’s "cultural tradition" forward:

[T]he curricula of the law schools must be revaluated and extended to provide an understanding of the principles and processes of the new and widening fields of law. The infinite complexity of these new areas of social administration and the uncertainty of their composition render it impossible for the schools to offer detailed instruction. They can, however, broaden the student’s knowledge in those subjects out of which the concepts of public law arise. They can and must insist as a prerequisite to the attainment of a law degree that the student possess some general understanding of the social sciences and of the function and techniques of existing social structures. They must impart to the student an awareness of "new economic movements, the new philosophy of government, the new techniques of administration" out of which the principles of modern public law are born.

Chapter 7 continued

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