A Lament for Legal History
A friend (and fellow law graduate, non-practising) recently related an exchange she had with a prominent Canadian justice in the course of the friend’s work with a federal government department. (You may notice I am trying very hard to keep details vague, so as not to cause any embarrassment, although the friend did give me permission to relate this story in this column.) My friend had the pleasure of accompanying the judge during a trip, and they got to chatting about Canadian law and the Charter in particular. The friend mentioned the concept of the “living tree” in the context of concepts originating in Charter law. The judge gently chided her, noting that the phrase far predated the Charter, appearing in the Person’s Case, and reportedly expressed a mild lament for the state of legal history education in law schools today. That my friend graduated over 15 years ago didn’t help.
The story got me wondering about what exactly is taught in law schools specifically in the way of legal history, and whether this can or should be improved. As I recall, historical case law or concepts were taught course by course as foundations or background for the material in the course – which seems a logical way of presenting material and the concept of precedent in the common law courses. It makes sense to me that legal history be taught contextually; to understand where the law comes from should help the student understand what it is now and where it is going. However, it seems to me that, for the most part, what students retain for the purposes of exams is current statutory or case law or very recent precedent. This may differ for courses in which a student must or chooses to research and write a paper. Perhaps legal history is somehow incorporated in legal research and writing courses today, but I don’t recall this being the case when I was in law school. And unless the real emphasis (by schools, students, and potential employers) on legal research has also changed, the influence of mandatory legal research courses is minimal, despite the real importance of the practical skills they offer. I seriously doubt that most students believe that an A in legal research land them their coveted jobs. If I’m wrong, that would be a good thing.
The difficulties carry forth into practice. In my experience, researchers place heavy reliance on recent case law. As well, many researchers understandably prefer to use CanLII as a starting point because it is free but, as we know, the starting point of most of its collections is fairly recent. For example, I’ve seen several instances in which lawyers base legal arguments primarily on recent case law located from electronic databases or from judicial consideration of current statute only, without reference to earlier versions of the same provisions. Of course, apart from the “living tree” example, this approach may offer the most recent law, but the precedential basis of those cases might not be understood or might, indeed, be altogether misplaced. Without an appreciation of the historical development of the law in the particular area, the lawyer can be without an appropriate depth of understanding of the legal position and risks missing arguments by distinction or analogy, as well as flaws in the parties’ respective positions. Most recently I’ve seen legal reasoning blunders on limitations law issues, because of misconstruction of precedent, failure to look at the law of other jurisdictions, or lack of awareness of the basis for limitations principles or origins of statutory provisions.
What can law schools do differently to help students retain or at least better understand the importance of legal history? I’m not an expert on pedagogical matters, so I don’t expect I can answer as well as many who might have read this far. Perhaps simple things such as incorporating some legal foundational elements into exams in various courses. Or perhaps a required course in legal history, or a capping exercise that addresses some aspect of legal history or foundations. How to address this problem in practice? This depends on whether employers or practitioners themselves recognize a problem and are willing to direct resources to train students in in-depth research, and to provide them with (or allow them to access) research tools beyond those of recent coverage. Some of the best research I conducted was at the courts, where I was able to refer to older editions of Halsbury’s, to UK and US resources, and even to Blackstone’s Commentaries. This is probably most challenging for lawyers in smaller communities, who don’t have ready access to large courthouse or law school libraries. Do others see any other challenges for lawyers and students in larger firms or in larger centres? Or any other solutions? Or do you see a concern at all?
We have an entire course on legal history (and foundations) in our first year at UWO.
I have to say that I did enjoy it, but issues like the living tree doctrine in the Persons case came up in Constitutional instead. I don’t expect to remember those kinds of details in 15 years either. You are correct in that many students do not see the usefulness of legal history, primarily because a legal career has been reduced monetary gain.
At UVic, there was a significant emphasis on legal history, especially in first year, and a number of upper-year courses with very large historical components. One has to have a certain academic nature (or at least a curiosity about the law itself) to really appreciate the value of a historical perspective, though. Many, if not most, of my classmates seemed to view laws that were no longer valid, or had been changed by statute or the living tree, as worthless, as they would not “need to know” it in practice. Or so they thought, since none of them really knew what they would need to know in practice.
I always wondered if this was an artifact of the means-to-an-end trade school mentality that most of these same students possessed, or if their supposed pragmatism was actually a facade erected to hide their genuine lack of curiosity and interest in the law as an intellectual construct. There was a fairly clean and sharp divide between the intellectual and the anti-intellectual camps, and I can’t imagine that this was a phenomenon limited to UVic.
I think it’s important to clarify what is meant by legal history.
If the emphasis is on legal, if legal history means the doctrinal and historical origins of current law, it can be useful in certain cases, such as arguing about the signficance of a past amendment to a statute. I think this is where the lament lies; the lack of a historical perspective can lead to errors and diminished understanding. However, I’d have to say that in most cases, legal history isn’t especially helpful to most lawyers’ clients, e.g., to determine the quantum of a personal injury claim, incorporate a company, or interpret a contract. The trick is knowing when the historical view is necessary, and when to save the cost of taking that view. (Cough, cough, plug for specialist legal researchers…)
If the emphasis is on history, if legal history means the full workings of the common and statutory law over time, placed in its social, political, and economic context…that is even less likely to serve our clients in most cases, though it is of enormous importance intellectually and academically. A good example are the immigration exclusion laws passed and repealed in the last century; not often legally relevant anymore, but still politically important. We need people who know that history, to help guide policy and maintain the collective memory, but most of them will not be practising lawyers, I suspect.
Of course, in a sense every reported case is a micro-history, with a set of facts set in a narrative arc, leading (unlike real history) to a fixed conclusion in the form of a judgment. This means that some legal history is inevitably built into every course at law school, but I agree that this emphasis could be increased.
Thanks for a great article; very thought-provoking.
As a historian who takes an interest in legal history, I’m a bit surprised by your take on this. From the outside, it seems to me legal history is thriving among lawyers and law profs. Nearly every law school has at least one serious legal historian, publication is flourishing, the Osgoode Society for Cdn Legal History is the most successful of its kind in the world, etc.
But Tim Bailey makes a good point: law students and lawyers without an interest in history can and do ignore it completely. I would add that it’s probably hopeless trying to inculcate an historical sense in those immune to it. For interested lawyers and students, however, legal history is one of those subjects where professional self-education can (and should) be done by lawyers themselves, and not just delegated to law schools and required courses.
BTW, Robert Sharpe and Patricia McMahon wrote a terrific book last year on the Persons Case and its place in the living tree doctrine. Would Slaw have reviewed it?
I can give two examples, one from personal experience, of the importance of knowing something about legal history to properly represent clients today.
There’s a very high-profile example in U.S. legal news recently; whether or not Disney is entitled to copyright protection over Mickey Mouse, based on the 1909 Copyright Act in effect in 1928 and the title cards in the 1928 “Steamboat Willie”:
http://www.abajournal.com/news/mickey_mouse_mistake_may_invalidate_early_disney_copyright/
For the personal example, when I articled, one evening I was helping an associate prepare materials for use the next day. I noticed that one Supreme Court of Canada precedent cited was from the period when appeals could be taken to the Privy Council. I was keen enough that I checked Quicklaw on my own volition and yes, the case had in fact been appealed to the Privy Council. The Privy Council had, as I recall, affirmed the SCC, but that’s beside the point — the associate was unaware that appeals to the Privy Council existed or that an SCC case might actually have been overruled, and hadn’t included the Privy Council decision as an authority. Indeed, I had problems explaining it because the notion of an appeal from the SCC was so far outside the associate’s conception of what was possible.
Perhaps it’s my failure of imagination, but I am simply unable to understand how anyone could possibly graduate from law school in this country without knowing about Privy Council appeals. Did the associate in question sleep through all classroom mention of Edwards v. Canada, the Labour Conventions case, Citizen’s Insurance Co. v. Parsons, or any number of other cases?
My own favourite “history failure” from law school is the fact that too many students have never heard about — or registered the existence of — the various reception statutes.
But as important as history-as-client-aid, in my view, is history as part of a broader cultural sophistication that lawyers should aim at.