UBC Law: History

Chapter 7: Law’s Content

The Common Law Is the Thing, the English Common Law!

One feature of the early University of British Columbia law faculty that seems odd to citizen and lawyer alike at the end of the twentieth century is its "Englishness". Diana Priestly recalls that in her student days the casebooks "were filled with the leading English cases. Then Dr. Malcolm MacIntyre joined the faculty in my second year and Gilbert Kennedy, of course, they were always interested in getting more Canadian content and they brought with them the idea that we should be teaching some Canadian courses." There were, however, limits beyond which even the likes of MacIntyre and Kennedy would not go in mid-century Anglo-Canada. Priestly recalls MacIntyre complaining about the heavy preference for Canadian content in the first edition of Cecil Wrights’s Canadianist study of tort law. In his view good cases, not just Canadian ones, should have been selected.

After graduating from the bachelor of laws programme, Diana Priestly pursued graduate work in librarianship, returning to the University of British Columbia as its first professional law librarian in 1953. In this capacity, too, she noted the heavily English emphasis of mid-century Canadian legal education. The geography of the library reflected two biases: a preference for English law over Canadian, and a powerful preference for case law over statute:

The first things you saw when you entered the law library were the English materials—English finding tools (digests and encyclopedias), were on wall shelving immediately to one’s left, and English reports series were on wall shelving around the room. . . . Canadian report series followed English and were fitted in ahead of New Zealand, Australian and South African series, but after Ireland and Scotland. It is surprising how long pride of place continued to be given to English materials. It was not until I went to York (Osgoode) in 1967, and Balfour Halevy and I were starting a new law library in a new building, that we gave the Canadian materials the first place. . . .
The prior importance of English materials extended to secondary materials as well—texts and government documents. The professors read The Times and were very anxious to get the reports of English Royal Commissions as soon as they read of them. The names of the English judges who chaired these commissions came up in our conversations as though we knew them.

The role assigned to statute law in legal education was similarly manifested in the library layout. Although the faculty spent a good deal of time "discussing how we could incorporate the use of statutory materials in some of the courses" there was a general "lack of interest in statutory material". Priestly recalled that when she took up the position of law librarian, "only the most recent revisions of the B.C. and Canadian statutes were shelved in the main reading room. They followed the English digests on the shelves. All other statutes were relegated to the Hall . . . with no provision for chairs and tables at which to work on this material."

Although both of these features of legal education seem distinctly peculiar at the century’s end, they were the result neither of lack of imagination nor lack of industry in the 1950s. Canadian lawyers and legal educators at the time had a much greater affection for things British than now exists and many viewed the English common law as a pinnacle of human achievement. Interviewed by the University of Victoria Aural Legal History project, Donald Clark Fillmore complained that modern law students spent too much of their time reading the judgments of "the Supreme Court of Canada plus the provincial court, B.C. courts". This approach he thought to be "a mistake" because "[t]hey are going to be too limited, they get the case method but they are limiting it greatly. I don’t know how often they look at an English report. . . . the common law is the thing. The English common law."

Chapter 8