Thursday Thinkpiece: The Legal Imagination of Rod Macdonald

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The Unbounded Level of the Mind: Rod Macdonald’s Legal Imagination

Janda, Richard, Jukier, Rosalie and Jutras, Daniel. The Unbounded Level of the Mind. Montreal: MQUP, 2015. Print | Reprinted with permission

Richard Janda, Associate Professor, Faculty of Law at McGill University | Rosalie Jukier, Associate Professor, Faculty of Law at McGill University | Daniel Jutras, Dean of Law and Wainwright Chair in Civil Law at McGill University

Excerpts from the the Preface and Chapter 22. Endnotes omitted.


Richard Janda, Rosalie Jukier, Daniel Jutras

How does one write a preface to a postscript, a prologue to an epilogue? Perhaps by reminding oneself that Rod Macdonald’s life and work remain so vivid and such a constant touchstone for those who knew and engaged with him that it seems natural to reflect on him prospectively rather than retrospectively. The three of us joined McGill’s Faculty of Law as young scholars in the 1980s, at the outset of Rod’s deanship. We have spent our entire academic careers in this environment. We have been accustomed to thinking of his past as his prologue, to waiting in anticipation for the next transformation of his thinking. Indeed, to the very end of his life, Rod himself wondered what could and would be next.

It was in the spirit of preface and prologue that more than 300 people gathered to discuss the influence of Rod’s scholarship and its prospects for future research. On 7–8 February 2014, four months before he passed away on 13 June 2014, jurists and academics gathered in the Moot Court of McGill University’s Faculty of Law to ponder his life’s work. There, friends, colleagues, students, mentors, mentees, and admirers spent two intense and memorable days in Rod’s company and that of his wife, Shelley Freeman, and their children, Madeleine and Aidan, often overwhelmed by the scope and scale of his scholarship and accomplishments.

The attempt to put the symposium together while we could still be with Rod placed us under an impossible time constraint. Rod himself imagined a rather intimate affair assembling those few people who would be available. Yet the impossibility and audacity of the event attracted people to it, proving Rod’s dictum that “if it’s not impossible, it’s not worth doing.” Thus, Justice Rosalie Abella of the Supreme Court of Canada turned her agenda upside down. Stephen Toope, then president of the University of British Columbia, put everything else on hold. Partners from law firms in Chicago and Los Angeles took temporary leave of their clients. Law deans from across Canada either came or provided subsidies for colleagues and students to attend. The intimate affair became the largest symposium ever staged at the faculty. Students at McGill who had never had Rod as a professor not only swarmed to the event but also poured themselves into organizing and facilitating it. It was also especially meaningful and moving that Rod’s long-time friend and co-researcher, Andrée Lajoie, launched the publication of her biography, La vie intellectuelle de Roderick Macdonald : un engagement, at the symposium.

This collection of essays is formed around papers that emerged from the presentations made at the symposium. They are grouped around three themes: Lessons of Rod Macdonald’s Scholarship, Lessons of Rod Macdonald’s Life, and Lessons of Rod Macdonald in His Own Words. The titles of these three parts were inspired by Rod’s ground-breaking work, Lessons of Everyday Law.

If It’s Not Impossible, It’s Not Worth Doing: Rod Macdonald’s Vision of Legal Education

Rosalie Jukier

“If it’s not impossible, it’s not worth doing.” I have chosen these words as the title for my paper on Professor Rod Macdonald’s vision of legal education, for two reasons. The first is that this is a direct quote from Rod Macdonald, one he used when he spoke at Harvard University’s Law School and presented McGill’s transsystemic law program to its faculty. The second, and more important, reason is because this expression exemplifies the man himself. It speaks to his whole life and career, one that by any standards is impossible to most, but to Rod, one that in its sheer and audacious impossibility was the only one worth doing.

What exactly did Rod Macdonald, in his research on legal pedagogy, teach us? What follows is my understanding of some of his most important teachings and those that have influenced me as a pedagogue and an aspiring scholar of legal pedagogy.

First and foremost, he taught us that our view of legal education is far too narrow if we think it occurs only in the classroom dispensed only by law professors. Rather, he taught us that it occurs both inside and outside the law faculty, formally and informally, in a variety of sites and through a variety of media and that we should rejoice in “the implicit, the inferential, the tacit, the underground [because there, we] truly discover where change is occurring.” He lived his belief in the pedagogical power of hallway conversations, encounters in coffee shops, and shared rides home on the bus. He found, and taught us to find, important lessons of law from interactions with the unlikeliest of legal sources, ranging from piano teachers to one’s own children. And, unsurprisingly, he challenged the exclusive use of traditional sources, such as state-enacted law and appellate court decisions, in teaching materials, quipping, “what effect, if any, do appellate decisions have on the way ordinary people live their lives”?

Rod Macdonald also taught us to challenge the traditional dichotomy of legal education, what he termed “the perennial chestnut” of “‘practical’ as opposed to ‘theoretical’ education,” a dichotomy that has plagued so much of the debate concerning the nature and role of legal education. He exposed the falsity of this dichotomy by explaining rationally, and poetically, that “[a]bstract, theoretical knowledge is [simply the] canvas on which students of law learn to paint.” Moreover, he maintained throughout his academic writing that legal education can, and should, prepare our students for a multitude of careers and that the “goal is not to stigmatise certain career choices, but rather to value all careers and thereby confront every student … with the challenges and responsibilities attendant upon the ethical deployment of legal knowledge in any type of practice.”

These were important lessons for me when, together with a doctoral student at McGill, I embarked on writing about legal education as it pertains to graduate study in law. My co-author, Kate Glover, and I used Rod Macdonald’s conception of legal pedagogy to posit that undergraduate and graduate legal education should not be polarized and siphoned off into separate silos where, inevitably, much of the conversation about legal education excludes graduate study. Viewing them in separate spheres only serves to perpetuate the tug of war Rod identified between legal practice and legal theory, mapping graduate studies onto legal academia and theory and undergraduate studies onto legal practice and the profession. Instead, we proposed conceiving of the law faculty in a holistic sense, as an integrated whole, with a single but broad mission: that of cultivating jurists. Thinking of legal education as forming jurists avoids pigeonholing law graduates into categories of academic, theoretician, practitioner, or policy-maker. It evokes a calling that transcends the practising bar and the academy, one that incorporates contribution to society and legal thought, intellectual reflection, and creative and critical thinking and one that is shared across graduate and undergraduate legal education.

For Rod Macdonald, the law faculty (and he always deliberately referred to it as a “law faculty” rather than as a “law school”) was not only an intellectual community but also a community of learners where professors learn as much from their students as students do from their professors. Rod Macdonald lived that philosophy every day of his teaching life. Aiming to elicit not only class participation but genuine dialogue, he knew that the best teachers learn from their students. In his words, “true teaching involves qualities, skills and actions that are the exact opposite of the notion that equates teaching with authority and the one-way projection of expert knowledge from teacher to learner.” It is profoundly telling that in one of his later articles on legal pedagogy, “Everyday Lessons of Law Teaching – Le quotidien de l’enseignement juridique,” he features sixteen “teachers” from whom he has learned and includes several of his students in that list.

Many aspects of Rod Macdonald’s scholarly life were defined by his challenging of the status quo and perceived orthodoxy. Legal pedagogy was no exception. He challenged all the “isms” – the instrumentalism, pragmatism, formalism, and professionalism of legal education long before this was popular. In so doing, he also taught us the importance of being provocative, a trait that came quite easily to him. If we had any doubt, he sometimes proudly told us that in his written texts, saying openly, “I mean deliberately to be provocative.” After all, who but Rod Macdonald would have had the nerve to write in a journal article in 1979, at an incipient stage of his academic career, that he wasn’t quite sure that teaching the law of contracts was preferable to teaching the law of bumble-bees, bemoaning, years later, “[w]hy, in heavens name, do the labels put on subjects by practitioners and treatise-writers a century ago continue to drive the way we, as university law teachers, organize our curriculum?” Rod’s call to provocation was deliberate. It was to teach us the dangers of complacency, the reality of contingency, and the importance of instability. Only through what he called “destabilizing the known” can we “imagine the world differently.”

Rod Macdonald was always far ahead of his time when it came to ideas about legal pedagogy. Although it is a hot topic in law faculties today, Rod was a pioneer when he began to stress the importance of interdisicplinarity. He recognized early on that law courses “have a nonlegal meaning [and that] their boundaries are defined by non-legal factors.” He taught us that “to see any particular incidence of human interaction through the lens of law is simply a choice,” law being but one lens through which to analyze and solve human problems.

Through this notion of law as a means of solving human problems, Rod Macdonald taught us his most important lesson – what legal education should really be about. Inspired by Lon Fuller, who, in Rod Macdonald’s words, “saw law as a human project, a human accomplishment, and a human aspiration that emerges from ongoing patterns of human interaction and the reciprocal adjustment of human expectation,” he conceived legal education as being, at its core, learning how “to attend to the complexities of human beings in interaction with each other,” stating that we should teach how law could be “a facilitator of human interaction” and “about finding social outcomes that help solve human problems [rather than] perfecting abstract concepts to solve legal puzzles.”

He stressed that teaching law is not about teaching “the” law but rather “focus(ing) on the goals we seek to achieve through law” and that the “pedagogical propeller” of a law course had to be its “commitment to questioning orthodoxy’s privileged place in the creation and perpetuation of legal knowledge.” Ultimately, he taught us that legal education is about self-discovery. And that the “who” (who we are and who we become) is more important than the “what” (what we teach or what we learn).

Remarkably, despite being extremely critical, even at times mocking, of traditional conceptions and practices of legal education, he managed to inculcate in us a sense of optimism. Instead of leading us down the path of cynicism, which would have been relatively easy, he told us that not only are we are fortunate to be law teachers but that teaching law is actually a way of being alive!

Rod Macdonald’s thinking on legal education and pedagogy ultimately evolved into his conception of the virtuous life. There is much to say about his concept of virtue, and many papers in this collection rightly focus on it. Rod Macdonald himself summed up what pursuing virtue meant – “a morality of duty and responsibility in our relationships towards others and a morality of aspiration and virtue in our expectations of ourselves.”

To many, this may sound impossible, but as Rod has taught us, “if it’s not impossible, it’s not worth doing.

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