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“Valour Rather Than Prudence”: Hard Times And Hard Choices For Canada’s Legal Academy
(2013) 76 (1) Saskatchewan Law Review
Excerpt: Part C, The Return of Legal Fundamentalism
[Footnotes converted to endnotes and renumbered.]
I have not completed my catalogue of the hard times confronting our law schools. Perhaps the most serious of all is the return of what might be called “legal fundamentalism.”
For a century or more, legal scholars (and some thoughtful practitioners and judges) have one way or another insisted upon the indeterminacy of legal decisions, the historical contingency of legal institutions and processes, and the cultural variability of what people understand “law” to be. There is, of course, no manifesto to which all Canadian law faculties or professors members subscribe. The only attempt to write one, in the early 1980s, provoked more controversy than concurrence. Nonetheless, I maintain, in the 1960s the legal academy began tentatively to explore a series of what I will describe (for want of a better descriptor) as “anti-fundamentalist” propositions. The legal academy embraced these propositions with some enthusiasm in the 1970s and 1980s, and by the 1990s it had begun to translate them into discursive conventions (what we teach and write and how) and institutional practices (how we organize collective activity and present ourselves to our various publics). Today, while anti-fundamentalism is far from universal, it finds at least tacit expression in the mission statements, curriculum reports and academic programs of most law faculties and in the CVs and course syllabi of many individual law professors. Its underlying assumptions, and their implications, can be captured in a series of syllogisms:
- Substantive legal knowledge is inherently indeterminate, has a short shelf life, and is used (if at all) in unpredictable combinations by lawyers in various kinds of practices. The study of particular subjects should therefore be regarded not so much as an end in itself but rather as a vehicle for teaching law students how to analyze and resolve legal problems.
- No convincing argument or evidence demonstrates that any particular area of substantive law is indispensable for either students’ intellectual formation or lawyers’ professional functions. Law schools should therefore construct their curricula so as to afford students an ample, arguably unlimited, choice of courses and seminars, whose content and pedagogic strategy should be largely at the instructors’ discretion.
- Many lawyers spend much of their time performing routine procedures that can be (and are) also performed by para-professionals and support staff with no formal knowledge of the underlying legal rules or principles. Law schools believe that, while students should be made aware of these routine procedures in a general sense, training in their use is best undertaken elsewhere.
- Successful resolution of most problems encountered in legal practice requires not only knowledge of substantive and adjectival law but also an ability to negotiate the practicalities of the legal system, to engage with the real-life circumstances of the parties and to take account of the larger social and economic circumstances within which their interests are imbricated. Law students should therefore learn not only to locate problems within their legal-systemic and larger societal contexts, but also to work effectively with non-legal actors to resolve them.
- Law graduates not only provide conventional legal services to clients, but also occupy leadership and technocratic roles in business, government, politics and social movements. Law teachers should therefore expose their students—many of whom will occupy these roles—to insights from adjacent disciplines so that they will better comprehend how law shapes and is shaped by social and economic forces and cultural practices.
- Law and legal practice have become increasingly complex, and are changing at an increasing rate of speed. Law schools should therefore educate law students to adapt to complexity and change, and to embrace and promote change that is in the public interest. Legal scholars should assist the profession and the public by identifying the need for change, offering insights into the best way to achieve it, documenting its effects, and critically evaluating its consequences.
- Academics, lawyers working on public policy issues, as well as many specialist practitioners require greater breadth, depth and variety of knowledge than is provided in basic JD courses. Law faculties should therefore offer enriched or advanced JD programs, graduate programs, and programs of continuing education.
To acknowledge once again the limits of this description, while most Canadian law faculties and individual professors subscribe to these anti-fundamentalist propositions, they do so with varying degrees of conviction, and actually act on their implications with varying degrees of consistency. Still, it would be difficult to find a single law faculty that opposes them on grounds of principle, or for that matter, many individual law teachers who do so.
By contrast, legal fundamentalists tend to believe that “law”—as a field of study, as a profession, as a social institution—has an essential meaning, a core content, and distinctive institutional characteristics that may change slowly over time but at any given moment can be authoritatively specified. The criteria for specification and the source of the authority to specify are not, for fundamentalists, open to question: they are the constitutional and institutional arrangements found on every conventional map or model of law. Compelling evidence that constitutions change meaning and institutions change functions over time seems not to disturb their certainty; their own lived experience that statutes, regulations, judicial decisions, and practical professional knowledge all have a limited shelf-life seems not to alter their insistence on law’s immutability. Fundamentalists also believe that legal rules can and do shape human and corporate conduct. However, they decline to acknowledge that the rules themselves are often ambiguous, that they are interpreted and applied by themselves and other human agents, that those agents are susceptible to cultural, social, and economic influences, and that legal rules are often circumnavigated or disregarded when they run counter to the felt necessities of the time or the interests of powerful clients. Finally, fundamentalists are dismissive of the idea that law can be produced other than by formal institutions of the state, in accordance with constitutionally mandated procedures. But they remain oblivious to the undoubted power of non-state normative systems that operate within, beyond and often in opposition to state law—including normative systems they themselves construct as public officials, as architects of the structures of private governance, and as shapers of quotidian legal routines.
The report of the FLSC task force exemplifies this fundamentalist approach. All law graduates are expected to demonstrate: (a) three “skills competencies” (in problem solving, legal research, and oral and written legal communication); (b) “an awareness and understanding” of legal ethics and professionalism (in a course dedicated to that subject); and (c) a “general understanding of the foundations of law” (principles of common law and equity, statutory construction and analysis, and the administration of justice), “of the core principles of public law” (constitutional law, including the Charter and the rights of Aboriginal peoples; criminal law; and administrative law) and “of the foundational legal principles that apply to private relationships” (contracts, torts, property, and “legal and fiduciary concepts in commercial relationships”).
I identify this approach as “fundamentalist” because the Task Force treats its selection of these particular “competencies” and “understandings” as res judicata, requiring no further explanation than the fact that eminent and experienced lawyers have signed their names to the report. But its selection is clearly both over- and under-inclusive. For example, numeracy, inter-personal skills, and the capacity to organize information are “competencies” almost all lawyers must deploy, but law students will not be obliged to acquire them. Another example: the “foundations of law” mysteriously do not appear to include legal theory, legal history, or the sociology of law. And one more example: students’ “awareness” of “ethics and professionalism” need not extend to the governance of the profession or to the economic and social forces that tempt or compel its members to transgress the rules of professional conduct. Worse yet, no theoretical or practical rationale is provided for designating certain substantive subjects as required and others as not. The Task Force does not claim that most lawyers actually use the designated fields of substantive knowledge in their practices; nor could it: almost no one practices in all of the fields mentioned, very few practice in some of them (such as criminal or constitutional law), and a great many who practice in specialized fields require knowledge of substantive subjects other than those specified (such as tax, employment, or intellectual property law). It does not assert that lawyers must understand the subjects identified because it will enable them to adapt to the changes in law that will inevitably occur during their careers. For example, no mention is made in the Task Force report of international, comparative, or transnational law, which are likely to become increasingly important given the globalization of Canada’s economy (nor, parenthetically, does the Task Force believe that “a general understanding of the core legal concepts applicable to the practice of law in Canada” should extend to the concepts of civil law). Nor does the Task Force justify its selection on the ground that certain fields of substantive instruction have been given priority on the basis of the public good or general welfare: for example, “legal and fiduciary concepts in commercial relationships” are required, but similar concepts in family, professional or governmental relationships are ignored.
In developing its list of requirements, then, the Task Force report acknowledges the relevance of neither theory nor empirical evidence. It therefore ignores the extent and rapidity of social, cultural, political, and economic change which shortens the shelf life of much substantive law and requires ongoing revision of the institutions and processes through which law works. It ignores technology that is changing access to legal information and the processing of legal transactions and, therefore, the course of legal routines, the cost structure of legal practices, the clientele that lawyers serve, and (for all of these reasons) the competencies and substantive knowledge they must possess in the future. It ignores the marked functional differentiation of roles within the legal profession that requires specialists to narrow but deepen their legal knowledge and general practitioners to broaden theirs while embedding it in standard forms and structured routines whose deployment does not entail costs that will price them out of the markets they serve.
 Consultative Group on Research and Education in Law, Law and Learning, (Ottawa: Social Sciences and Humanities Research Council, 1983). I was the principal author of this report.
 But there are some: their contributions range from sophisticated scholarship to vulgar rants. See, respectively, Ernest J Weinrib, “Can Law Survive Legal Education?” (2007) 60 Vanderbilt LJ 401; and Robert Martin, “University Legal Education is Corrupt Beyond Repair” (2009) 40:4 Interchange 437.
 Task Force on the Canadian Common Law Degree, Final Report (Ottawa: Federation of Law Societies of Canada, October 2009), online: Federation of Law Societies of Canada <http://www.flsc.ca/_documents/Common-Law-Degree-Report-C(1).pdf> [Task Force] at Recommendation 4B 1.
 Ibid at Recommendation 4B 2.
 Ibid at Recommendation 4B 3.1.
 Ibid at Recommendation 4B 3.2.
 Ibid at Recommendation 4B 3.3.
 Ibid at Recommendation 4B 3.
 Ibid at Recommendation 4B 3.3.