A History of Canadian Legal Thought

A History of Canadian Legal Thought: Collected Essays

R.C.B. RISK
G. Blaine Baker
Jim Phillips
Copyright Date: 2006
Pages: 336
https://www.jstor.org/stable/10.3138/j.ctt1287tzj
  • Cite this Item
  • Book Info
    A History of Canadian Legal Thought
    Book Description:

    Written over more than two decades, and covering the immediate post-Confederation period to the 1960s, these essays reveal a distinctive Canadian tradition of thinking about the nature and functions of law, one which Risk clearly takes pride in and urges us to celebrate.

    eISBN: 978-1-4426-5715-1
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Foreword THE OSGOODE SOCIETY FOR CANADIAN LEGAL HISTORY
    (pp. vii-2)
    R. Roy McMurtry and Jim Phillips

    Richard Risk, a true pioneer in the writing of Canadian legal history, has contributed more than anyone else to the discovery of often neglected Canadian thinkers about law, and to explanation and analysis of their thought as well as that of better-known legal thinkers such as Frank Scott, Bora Laskin, W.P.M. Kennedy, John Willis, and Edward Blake. Some years ago the Osgoode Society and Risk’s colleagues recognized his contributions to legal history with the publication of a festschrift –Essays in the History of Canadian Law: In Honour of R.C.B. Risk, edited by G.B. Baker and J. Phillips. Collected in this...

  4. Introduction
    (pp. 3-30)
    G. BLAINE BAKER and JIM PHILLIPS

    This anthology of 12 historical studies of Canadian legal thought, all the work of University of Toronto Professor of Law Emeritus R.C.B. Risk, collects work published over a span of some 20 years.¹ Selected by the author and the editors of this volume, at the request of the Osgoode Society, these articles represent a major corpus of writing on the history of Canadian legal culture, and are therefore best understood as contributions to Canadian intellectual history. The purpose of republishing them is to make a valuable, and in many ways unique, body of scholarship on the late-nineteenth-and mid-twentieth-century Canadian legal...

  5. PART ONE The Classical Age:: Canadian Legal Thought in the Late Nineteenth Century
    • 1 Constitutional Scholarship in the Late Nineteenth Century: Making Federalism Work
      (pp. 33-65)

      This shrewd observation was made in 1887 by Dennis O’Sullivan, in the preface to the second edition of his bookA Manual of Government in Canada.¹ In the text that followed, he described the institutions of Canadian government and advocated a model of federalism – the model he believed was the basis of the changes he was observing. This article is about O’Sullivan’s book and all the other books and articles written by common law lawyers about the constitution from Confederation to 1900. I plan to study not only this writing, but through it, the ideas about federalism that were shared...

    • 2 A.H.F. Lefroy: Common Law Thought in Late-Nineteenth-Century Canada – On Burying One’s Grandfather
      (pp. 66-93)

      Augustus Henry Fraser Lefroy was one of the leading common law scholars in Canada in the late nineteenth and early twentieth centuries, but he is now virtually unknown. Among modern Canadian lawyers, probably only a few specialized constitutional scholars have ever heard of him, and doubtless only a few of them have looked at his books. Among modern Canadian historians, most know him as a minor figure among the late-nineteenth-century Imperialists, if at all.

      Lefroy was born in Toronto in 1852, and educated in England, at Rugby and at New College, Oxford, where he took a BA degree in 1875....

    • 3 Rights Talk in Canada in the Late Nineteenth Century: ‘The Good Sense and Right Feeling of the People’
      (pp. 94-129)
      R.C. Vipond

      Edward Blake made this declaration about property in 1882. Presumably his beliefs were widely shared by Canadian lawyers, for he was the leader of the Liberal party, the treasurer of the Law Society of Upper Canada (Ontario), and one of the leading counsel. We seek to explore his beliefs and to reconstruct the understandings of rights in late-nineteenth-century Canada, and especially the understandings of common law lawyers.

      In addition, we seek to pursue this undertaking in ways that will illuminate, and be illuminated by, American experience. The last decade has witnessed an impressive renaissance of interest in late-nineteenth-century American constitutional...

    • 4 Blake and Liberty
      (pp. 130-151)

      This paper seeks to reconstruct Edward Blake’s understanding and use of the word ‘liberty’ and I hope it will illuminate not only his own thought, but constitutional thought generally in Canada in the late nineteenth century, especially the understandings of rights, federalism, and legislatures. Because liberty was a pervasive and powerful strand of Blake’s thought, my reconstruction leads into many different corners of his mind, and into many different incidents and issues in the world around him. My undertaking is like tracing a strand in a web – a strand that is both meandering and crucial to the structure and strength...

    • 5 John Skirving Ewart: The Legal Thought
      (pp. 152-178)

      John Skirving Ewart is well known to Canadian historians as a minor figure in the story of independence and as a lawyer who wrote some books with peculiar titles. He is almost unknown to Canadian lawyers, including legal scholars. Such is the state of our knowledge of our legal history. My objectives in this paper are to describe his legal writing and to reconstruct his understandings about law and legal reasoning. My hopes are to demonstrate that he was a more accomplished and complex person than historians have believed and that he was a formidable legal scholar. More generally, I...

    • 6 Sir William R. Meredith, CJO: The Search for Authority
      (pp. 179-208)

      This paper is a study of the judicial mind of Sir William R. Meredith, especially his beliefs about the common law and statutes. I offer it as a tribute to John Willis, with respect for his humane and restless mind, and with gratitude for all that he taught me. I am especially grateful for so many long talks on Sundays, when I had just begun to teach and he had been acknowledged for decades to be a great teacher, and we were both worried about Monday’s classes. I discovered only slowly how much I learned listening to him struggling to...

  6. PART TWO The Challenge of Modernity:: Canadian Legal Thought in the 1930s
    • 7 Volume One of the Journal: A Tribute and a Belated Review
      (pp. 211-232)

      TheUniversity of Toronto Law Journalwas founded in 1935 and has thus just completed a half-century of publication. This does not make it old as law journals go, and compared with a few others it is a mere stripling. Its birthday does, though, justify some small celebration. I can hardly praise it, at least not for its past 15 years, during which I have been the editor, but I do wish to pay tribute to its ideal. My tribute is this study of the first volume – a belated review. It was a remarkable volume indeed: it was the beginning...

    • 8 The Scholars and the Constitution: POGG and the Privy Council
      (pp. 233-270)

      Canadian lawyers, historians, and political scientists have written countless pages about the judgments of the Judicial Committee of the Privy Council that interpreted the division of legislative powers made by sections 91 and 92 of theBritish North America Actof 1867 (BNA Act).¹ They have named heroes and villains, and successive generations have had different understandings about how to analyse the judgments and about what standards define a hero or a villain. This essay does not attempt to add more pages to this pile. Instead, it is about the writers themselves and their ways of writing. It is, though,...

    • 9 John Willis: A Tribute
      (pp. 271-299)

      John Willis has been respected and loved in the Canadian legal community as a teacher, colleague, and scholar for decades, and one of his articles – ‘Statute Interpretation in a Nutshell’¹ – is probably the best-known single piece of Canadian legal writing. The law about government was his abiding interest and the subject of most of his writing. This article is a study of this writing, especially the writing done during the 1930s. It is primarily part of an undertaking to understand the minds of Canadian lawyers, but it is also a tribute. My conclusion is that this writing was outstanding scholarship....

    • 10 The Many Minds of W.P.M. Kennedy
      (pp. 300-340)

      W.P.M. Kennedy is known to historians as the author of a book about Canadian constitutional history, although most of them probably know him only from reading Carl Berger’s study of Canadian historians.¹ He is known to lawyers as a dean of the University of Toronto Law School, although most of them probably believe that he reigned in some obscure past, before ‘Caesar’ Wright succeeded him and ‘real’ legal education began in Ontario. These impressions are at best incomplete. Kennedy made a large contribution to his adopted homeland; he was an impressive scholar, and his vision of legal education is a...

    • 11 Canadian Law Teachers in the 1930s: ‘When the World Was Turned Upside Down’
      (pp. 341-400)

      This paper is a study of the scholarship done by the teachers in Canadian common law schools in the late 1920s and the 1930s. A few of them are now remembered, albeit dimly, but most are now forgotten, and today, law teachers have no sense of them as a distinctive generation. Yet they produced a wide range of impressive scholarship, and introduced changes that continue to shape legal thinking. When I told one of them, John Willis, that I was interested in this period, he captured both the accomplishment and a distinctive mood in a single phrase by exclaiming that...

  7. PART THREE Postwar Developments
    • 12 On the Road to Oz: Common Law Scholarship about Federalism after World War II
      (pp. 403-434)

      I can state the purpose of this essay in a few words: it seeks to reconstruct the Canadian common law scholarship about federalism from the late 1940s to the early 1970s. Such a brief account, though, is far from being an adequate prospectus for any reader who wonders whether to devote an hour or so to my enterprise. Some elaboration is needed.

      Federalism has been one of the large themes of Canadian public life since Confederation. It has been studied from all sorts of perspectives, for all sorts of purposes, and by all sorts of scholars. I am interested in...

  8. Back Matter
    (pp. 435-437)