UBC Law: History

Chapter 11: The Modern Web of Legal Education

The Expanding Law School, part 3

An important thread in the transformation of Canadian legal education during the 1960s and 1970s has its origins in discontent with legal education at the University of British Columbia and McGill. It drew its intellectual inspiration from the law and social science stream associated with the Yale Law School of the 1950s, and was eventually played out to its fullest in the creation of a new, highly innovative law faculty at the University of Victoria. In 1964 a young McGill law professor published an article that had been fermenting within him since his student days at the University of British Columbia a decade before. Published as "Legal Education at McGill: Some Problems and Proposals" ((1964) 10 McGill Law Journal 126), the article communicated a profound discontent with the state of Canadian legal education. Its author, Professor Ron Cheffins, recalled his dissatisfaction during a 1981 interview with Murray Fraser. He had one key objection:

[M]y objection to law schools as I had seen them in Canada was that they were neither intellectual on the one hand, truly intellectual and academic on the one hand, nor truly practical on the other. It struck me that they fell between the two stools, in that they were not inspiring in terms of ideas and yet they didn’t teach you how to do very much other than argue Court of Appeal cases. I guess my basic idea was to try to make universities more intellectual in the sense of trying to relate law more to its political, social and economic environment.

Dr. A. J. McClean (always, and affectionately, known as "Bertie") became dean in 1970, when Dean Curtis retired. Both a respected scholar and a popular teacher of property and trusts, he guided the faculty safely through the "interesting" years of student activism, and returned without regrets to teaching.

The Bar in effect exercised too much influence on Canadian law faculties. Cheffins told Maryla Waters in 1984 that the overstretched full-time faculty of the early 1960s had not been able to put "any real thought" into curriculum. His student impression was that "the Bar simply said ‘Cram as many rules into these kids as you can and ship them down here to article.’ It seemed to me as if they were trying to cover the entire spectrum of law in three academic years with virtually no thought given to what the hell they were doing." More specific concerns related to the absence of any unifying theoretical framework, over-reliance on final examinations, too few seminars, limited student choice, and a monotonously repetitive programme: "[d]reary mimeographed casebooks, case after case after case. No Jurisprudence, no higher overview of law. . . . Approximately thirty fragmented subjects with no linkage between one and the other." It is telling that even one student’s perception of the curriculum could be so markedly different from the high aspirations of his teachers. The tremendous pressures on early full-time faculty and the absolute necessity of justifying themselves to an under-educated professional constituency (as late as 1967 an outside committee explained that "tensions between the practicing profession and the academic law teachers" in British Columbia was "in part attributable to the fact that very few of the seniors in the profession have had an academic law school education") meant that university law faculties of the 1950s sat uneasily between the world of practice and the world of ideas. Law faculties "right across the country" were similarly situated and Cheffins found "the same nonsense" when he arrived to teach at McGill.

"Legal Education at McGill: Some Problems and Proposals" was written as a heartfelt critique of the status quo. Time frequently catches up with the most outrageous of ideas and most of Cheffins’s proposals were in fact accepted by every credible law faculty in North America during the 1960s and 1970s. As a result, ideas that now seem modest or even commonplace "would have been regarded as quite radical and far reaching" in 1964. These ideas centred on developing truly "national" programmes of legal education, introducing some significant student choice to the curriculum, providing a sophisticated education in the legislative process, and developing interdisciplinary approaches to legal education. The ideal was a law school that encompassed law in all its forms, prepared graduates for all the careers that they might reasonably be expected to enter, and was thoroughly, absolutely, grounded in the world of scholarship and the university.

Ron Cheffins, played a pivotal role in developing the University of Victoria Faculty of Law.

The sorts of ideas Cheffins expressed found fertile ground in Canada at the time—to some extent contrary to his expectations. A Report of the Curriculum Committee to the Faculty of Law, University of British Columbia in February 1964 resonates with similar themes. The report indicates that, with massive increases expected in student enrolment as the baby boom approached university age, the law faculty was "at a decisive stage in its history". A key portion of that report merits quotation at some length for it indicates the direction not only of changes that were immediately implemented but also the terrain through which battles over curriculum have been contested at most Canadian law faculties ever since:

We are a University Faculty, part of a community dedicated to the disinterested pursuit of knowledge and ideas in a spirit of free inquiry. In determining what is studied how, and by whom, we should be unhampered by any restrictions other than the limitations of our own physical and intellectual resources. But we are also a professional Faculty, charged with the responsibility of producing men and women equipped for the profession of law. Since the majority of our graduates do in fact enter the practice of law in this province we must have in mind the needs of the practitioner. But the services of lawyers are demanded in other capacities as well—industry, government and the universities—and we have a responsibility to ensure that our graduates are capable of meeting these demands.
All these functions are complementary. The lawyer is not merely a technician engaged in keeping a client’s affairs in order. He is a professional man with obligations to his profession, the court, the state and society, as well as to his client. He thus requires not only skill and knowledge but wisdom and understanding. Far from being a series of abstract propositions, the law is intimately related to the problems of social life. If not the most, it is unquestionably a most important form of social control. The legal process is a dynamic and creative one that shapes, is shaped by, and secures the basic values and institutions of the community. The doctrines and verbal propositions commonly called law have meaning only in the social context in which they are used. Legal rules do, however, have a compulsive force of their own. They constitute order in a changing society; both order of the moment and a means to orderly change.
In order to play the full role of the lawyer in the community our graduates must acquire more than a knowledge of doctrine. This they must know. But to deal with the law as a practitioner, to act as a policy-adviser and policy-maker in the community, the lawyer must understand the forces—whether political or economic, social or psychological—which shape the law and are expressed through it. He must understand the relationship between a rule and the reasons of social policy—whether in 1763 or 1963—which called it into existence and justify its survival—if in fact it is justified. He must understand the nature of law, and its process of "becoming"—that its "black-letter" rules always need reformulation.

I could not think of the splitting-up of knowledge as a permanent thing or as a good thing. Some day we must have a synthesis—but a synthesis that would create not a Jack-of-all-trades but an all-round scholar deserving of the name of savant.

—Henry Angus, My First 75 Years

Interestingly enough, the 1964 committee thought the teaching method that had defined the distinctiveness of the original British Columbia law faculty now stood as an impediment to improvements in legal education. The "case method", they reported, militated against the kind of legal education they sought to introduce. While it was very good for teaching "critical analysis" and probably "the most effective method of study in a law school", it needed to be supplemented by other approaches and other sorts of assigned readings, the committee thought.

"What is required," they said, "is the accumulation and introduction of new materials for the study of problems in a broader perspective. This would stimulate a freer spirit of inquiry and would alert the students to the wider frame-work in which the law operates." The new curriculum, the committee recommended, should develop a professional education directed toward three related ends: teaching the "basic doctrines, concepts and principles" of law; training in legal skills (including, they noted with regret, the need to teach law students "to communicate in the English language"); and teaching future lawyers to understand the social context of law. The "social context of law", though anticipated by both the early Canadian Bar Association’s "cultural curriculum" and the innovations introduced by the early "Curtis faculty", took on a new spin in the 1960s:

[T]he student must see the functions of law and lawyers in society as they have evolved over the centuries and he must acquire some framework of analysis which will give a more comprehensive meaning to law in its substantive and procedural particulars. He must learn to see the law in its total social context; to be aware of its uses as an instrument of social control in both the municipal and international arena, to be sensitive to the lawyer’s potentialities and responsibilities as a policy-maker and policy-adviser and to realize that value-judgments are involved at every level of the legal process.

Chapter 11 continued