In 1975, at a conference celebrating the 100th anniversary of the establishment of the Supreme Court of Canada, my colleague Stephen Scott was asked what he would recom- mend as an appropriate commemoration of the event. Without missing a beat he replied: ”œRestore appeals to the Privy Council.”
Regrettably, I have no witty remark like ”œAmend the Preamble to replace the Supremacy of God with the Supremacy of the Chief Justice” as a response to the ques- tion I’ve undertaken to address on the Charter’s 25th anniversary. In fact, I’m a bit embarrassed by the request to consider how the Charter has changed legal education, for it implicitly brings home to me the uncomfortable fact that I am one of a shrinking cohort of Canadian law professors " those who were actually in the ranks prior to 1982.
I recall that shortly after Canada’s purported passage from a state of nature to a state of grace on April 17, 1982, I was asked to participate in a Symposium Issue of the Supreme Court Law Review. My short essay, I vowed, would be my first, and last, published contribution to Charter scholarship. To date I’ve resisted the temptation to revisit schedule B to the Canada Act 1982 (UK), although in other constitutional texts I have skirt- ed its frontiers. Admittedly, there have been many times when frustration in the classroom has led me to add another para- graph to the apocryphal article I’ve been mentally composing in fits and starts since then. As yet I’m undecided as to whether this virtual parting shot will be entitled " evoking the memo- ry of the barons at Runnymede in 1215, and in contrast to their efforts " Parva Carta, or perhaps more charitably, Media Carta.
Here, I have a different objective " namely, to consider in what ways teaching in law faculties has changed over the past quarter-century. In doing so I shall, of course, indirectly examine various changes to Canadian legal culture generally: (1) how law, and especially constitutional law, may have changed; (2) how politics may have changed; (3) how the practice of law may have changed; (4) how judging may have changed; (5) how legal scholarship may have changed; and (6) how law teaching and legal research in precincts other than law faculties " for example, in political science, economics, sociology, philosophy, socio-legal studies, public administration and policy studies departments " may have changed. Nonetheless,
my focus is on law faculties, and the object of inquiry is legal pedagogy. How do law teachers imagine their role? How do they per- form it? What implicit messages do they convey to their students through their teaching, their research and the institutions and processes they esteem?
Before presenting my observations, I’d like to enter three caveats. One relates to the occasion for this text, one to the nature of the claims I shall be making and the third to the scope and purpose of this essay.
In deference to the anniversary we are commemorating, I have organized the reflections that follow as 25 brief commentaries on post-Charter legal edu- cation. The very fact that it is 25 (and not 19, 22 or 27) years of Charter dispensa- tion we are observing reveals much about the mystical commitments that we asso- ciate with the document. Like the ancient Greeks who thought the key to the universe lay in mathematical rela- tionships, in 21st century Canada we choose our celebratory moments on purely formal criteria " imagining not only that 25 is a more significant number than 24 or 26, but also that the mere coming into force of the Charter in 1982 was the most salient substantive event. Could we not also imagine artifacts such as the Canadian Bill of Rights, the Victoria Charter, the Quebec Charter of Human Rights and Freedoms, the Patriation Reference, the Meech Lake Accord, the PEI Judges Reference, the Charlottetown Accord, the Secession Reference or the Anti-Terrorism Act (and the dates associated therewith) as equally transformative constitutional moments? I pick up on this obsession with the Charter as artifact later.
My second caveat is methodologi- cal. I do not wish to be taken as claiming that the Charter has actually precipitated any of the changes in legal education that I note here. Absent a care- ful empirical and multivariate regression analysis I hesitate to make causal claims, although it is apparent that some of the changes I signal are more closely con- nected to the advent of the Charter than others. In this (perhaps false) modesty I take my distance from those preoccu- pied with the document who believe that the parentage of all significant changes to governance in Canada since 1982 " for better or for worse " can be attributed to the Charter. Again, I return to this naive conception of the relation- ship between law and social change at the end of this essay.
A third caution is stylistic. This is not a law review article. There are no footnotes. I have tried to avoid weasel words. I mean deliberately to be provocative. After all, whether I’m right is not that important. What real- ly matters is to reflect on the scope and scale of these purported changes and to assess their impact.
What follow are 25 post-Charter pedagogical factoids. First I state what I perceive to be a significant institu- tional, social, judicial or legal cultural change. Then I elaborate briefly upon how I perceive it to have affected law teaching.
1. The historical substance of constitu- tional law has been progressively dis- placed by a preoccupation with the Charter. When Albert Abel published the 900-page 4th edition of Bora Laskin’s lead- ing casebook Canadian Constitutional Law in 1973, he left out the chapter on civil lib- erties that Laskin included in the 3rd edi- tion on the grounds that the subject was not really constitutional law. The editor was obliged " in the guise of a revised 4th edition two years later " to add a chapter of 87 pages on the subject prepared by Bora’s son, John I. Laskin. Laskin’s original text of 1951 contained a concluding chap- ter (22 of 663 pages) treating what he styled as ”œConstitutional Guarantees.” In the 1977 first edition of Canadian Constitutional Law Peter Hogg allocated 29 of 466 pages to ”œCivil Liberties.” Today, the classic casebook treatment, Canadian Constitutional Law (3rd edition), devotes almost 60 percent of its 1,300 pages to ”œRights” " with only 40 of those pages on ”œRights” not dealing with the Charter, while the latest loose-leaf of Hogg’s treatise consecrates over 40 percent of its pages to ”œCivil Liberties” " all but 25 of which concern the Charter. Few are the constitu- tional law teachers today who do not sac- rifice their teaching of history, politics, institutions, practices, conventions and federalism on the altar of the Charter.
2. Sections 91-101 and 133 of the Constitution Act, 1867 have been de- emphasized as structural reflections of the Canadian political community. Until the late 1970s, considerable effort in constitutional law teaching focused on how the then British North America Act, 1867 sought to construct a federa- tion not just of existing colonial political units, but of peoples and communities. The language of two founding peoples or of the Constitution as a ”œcompact” between two nations acknowledged the centrality of ethnic, cultural, linguistic and religious diversity to the definition of the Canadian state. The key compo- nents of identity were nurtured through institutional arrangements such as the Senate, an upper house in Quebec, the attribution of marriage and divorce to federal jurisdiction and a plethora of administrative mechanisms guarantee- ing political participation to minority (or to use the expression of the day " dis- sentient) communities. Today, the con- stitutional protection of social diversity is conceived as being primarily about anti-majoritarian constraints upon state action, rather than about the specific mechanisms and modes that ensure enfranchisement within a political com- munity. Concomitantly, even when con- stitutional law teaching focuses on ”œpar- ticipation enhancing” institutions and practices, it does so almost exclusively by evoking justiciable rights attributed to individuals, and not the design and functioning of these institutions.
3. Conceptual classifications previously thought discrete no longer frame the interpretative logic of legislative jurisdic- tion under sections 91 and 92. Traditionally, constitutional review on federalism grounds began with determin- ing the ”œpith and substance” of legisla- tion, asking ”œWhat is the matter?” and then assigning any particular statutory enactment to one or another of the ”œwater-tight” classes of subjects set out in sections 91 or 92. The difficulties courts experienced in applying the ”œdouble aspect” doctrine and their inconsistent responses to the question whether an ”œancillary powers” doctrine formed part of Canadian constitutional law bedev- illed the endeavour. Notwithstanding the attempt in City National Leasing to save the appearances of categorical exclusivi- ty, over the past 25 years, a different dis- course " pragmatic and functional rather than conceptual " has come to dominate. Contemporary law teaching largely follows this functionalist frame, to the point where conceptual arguments can no longer sustain even the organiza- tion of the curriculum. There is scarcely a course today that cannot be (always a logical possibility) and is not being (an epistemic choice) taught as a variation on a Charter theme. While functionalism overcomes misplaced formalism and invites law teachers to frame pedagogy around substantive issues, an over-com- mitment to imagining law pragmatically " as a seamless web " enables a tug on a single thread to unravel the whole, untrammelled by jurisdictional stitching.
4. The length of judicial judgments, especially in constitutional cases, and especially of the Supreme Court, has increased exponentially. Prolixity is fel- low-traveller of pragmatic and function- al reasoning. The seven separate opinions in the landmark 1959 case Roncarelli v. Duplessis, for example, took up only 65 pages in the Supreme Court Reports. By contrast, four opinions in the M. v. H. case in 1999 consumed 202. This inflation, which is probably inevitable given the complexity of issues now being adjudicated under general stan- dards, has major consequences for the way that judicial decisions are compiled and taught. To take one example, in the 4th revised edition of Laskin’s casebook, Cartwright’s majority judgment in the Coughlin case was reproduced almost in its entirely, and Ritchie’s dissent was edited by half; in the recent Canadian Constitutional Law (3rd) compendium, the 16-page case appears in an extract of 2 pages. Even contemporary cases are severely edited. In the latest version of Mullan’s excellent Administrative Law materials only the Baker decision is reproduced in full. In such a presenta- tion of cases, law teaching no longer focuses on the subtle processes by which the messiness of everyday life gets dis- tilled into a judicial decision reasoned through from start to finish. In the man- ner of the apocryphal contracts professor who finds the ratio decidendi in the third last line of the fourth last paragraph of a judgment, much contemporary pedagogy rather imagines the case " or more frequently, the excerpt " simply as an alternative way of presenting a legal rule.
5. The scope of justificatory materials referred to in judicial decisions has been greatly enlarged. Prior to the mid-1980s it was rare for judges to cite sources apart from other cases in support of their opin- ions. The law reports are replete with judicial observations that extrinsic aids to interpretation were impermissible and living writers could not be cited as authority. Even after Re Drummond Wren opened the door, landmark cases like Roncarelli v. Duplessis contained no cita- tion to parliamentary debates or to any scholarly text. By contrast, in the M. v. H. case, there were citations to almost 40 such sources. The broadening of justifi- catory materials may evidence a democ- ratization of legal reasoning, but it also invites judgments in which reasons for decision sometimes seem more a recita- tion of ex post facto rationales than an engagement with the disciplining ex ante constraints of a coherent normative regime. That there is a concurrent profes- sorial tendency to pass directly to ques- tions of high political theory without careful consideration of the specific issue to be decided and the intermediate level questions of political, economic and social policy is hardly surprising. For many law teachers today, the judicial decision serves simply as a pretext for armchair philosophizing.
6. Courts have explicitly recognized and increased the normative weight given to unwritten, implicit constitu- tional principles. For its first hundred years, the Supreme Court only rarely acknowledged the existence of unwrit- ten, implicit constitutional principles. The idea was floated in the Alberta Press case, Re Initiative and Referendum and certain ”œimplied Bill of Rights” deci- sions, but was expressly rejected in the late 1970s in Dupond. Then the Senate, Patriation, Quebec Veto, and Manitoba Language References brought these principles back to consciousness, whence they emerged full blown in the PEI Judges and the Quebec Secession References of the 1990s. But because the theory of such overarching principles of the common law constitutional tradi- tion was not fully articulated by scholars prior to the 1980s, their justification (wrongly) appeared to rest on little other than judicial fiat. Moreover, the rich his- tory and jurisprudential grounding of implied principles of parliamentary intent such as the ”œrules of natural jus- tice” have also been lost. While some professors essay to (re)construct such a theoretical ground, in many cases the teaching of basic principles of public law is often reduced to tactical invoca- tions of favoured political theorists (Aristotle today, Rawls tomorrow), or non-contextualized assertions that are not rooted in legal culture, constitution- al history and political philosophy.
7. Administrative law has almost dis- appeared as a separate field of public law, now being largely subsumed in doctrines of judicial review on constitu- tional grounds. In the 1960s and 1970s, administrative law was paradigmatically about the multi-functional regulatory agency operating as a ”œgovernment in miniature.” Soon thereafter, the belief that policy coherence could best be pro- moted through integrated institutional regimes that integrated legislation, administration, education, investigation and adjudication as instruments of gov- ernance fell victim to the ideology of deregulation. Emboldened by pseudo- constitutional arguments about judicial independence, and accustomed to defending common law rights against statutory encroachment, courts concluded that the rule of law requires the institutional independence of all thirdparty decision-makers. Since policy development through case-by-case rights adjudication within public agencies is now constitutionally suspect, the judicial branch has increas- ingly assumed the mantle of regulatory governance. The substantive law of pub- lic administration that previously focused on institutional design and the choice of governing instrument has been transformed by law teachers who do not reflect on when, why or how judges should have the last word. For them, administrative law means advanced civil procedure in the guise of constitutional review.
8. There has been a general tendency to legislative inflation (hyperlexis), and a proliferation of statutory instruments cast in broad, abstract formulas. The teaching of legislation has never been a strong point of North American legal education. For example, even in the 1960s most teaching of criminal law was grounded in the assumption that the Criminal Code was epiphenomenal. One learned the law by reading cases, not the Code. Today, a similar approach to inter- preting statutes prevails " but for quite different reasons. Because many enact- ments (the Charter being only one) and many legislative phrases (”œthe best inter- est of the child,” ”œhumanitarian and compassionate considerations,” for example) are cast in broad, abstract terms, statutory interpretation is rarely about the precise meaning of words and phrases as such. Legislative texts are reduced to formulas, and become mere themes upon which lawyers and law teachers incessantly incite courts to spin variations. While there is now much greater sophistication in specialist schol- arly writing about legislation, non-spe- cialist law teaching does not even make a pretense of attending to the text of a statute, and students receive little train- ing as to how normative language can be cast in propositional form. Whatever the ”œprinciples of fundamental justice” may be, in the minds of many professors, they need not be connected to plausible received meanings of the words ”œprinci- ples,” ”œfundamental” or ”œjustice.”
9. Cases and statutes are no longer read as exercises in practical reasoning about law reform but are simply seen as exem- plifying a discrete rule of law. Changes to the length, form and structure of judi- cial decisions have also led to changes in how processes of judicial and legislative law reform are conceived. Contemporary casebooks rarely contain ”œwrong” deci- sions that are well reasoned, and ”œimplausible” dissents are typically con- signed to ”œeditor’s notes.” Teaching com- pendia are now replete with ”œthe latest case” which is advanced as standing for a doctrinal principle that is ”œtrue because the court said so.” The use of a series of public law cases " for example the line of cases from Tommy Homa to Christie v. York Corporation, Drummond Wren and Noble v. Wolfe " to teach the logic of common law adjudication, the structur- ing of precedential claims in the flow of legal development, and the dynamics of judicial reasoning runs up against the inexorable logic of currency and rele- vance. Moreover, only rarely do teaching materials contain other documents that are not scholarly comments or editor’s notes. Today, the dynamic of everyday law reform " a dynamic that law teach- ers once could nicely capture by teasing out the subtle interaction of power, poli- tics, publicity, legislation and litigation driving situations like the K.V.P. saga of the late 1940s " gets played out only in the monotone of ”œCharter dialogue.”
10. As human rights becomes a focus of ”œprogressive” law teaching, courses aimed at socio-economic inequality no longer excite the activist’s legal imagina- tion. In the late 1960s, the ”œprogressive” component of a legal education defined itself as the struggle to overcome substan- tive social inequality. While law faculties did offer ”œcivil liberties” seminars exploring issues of criminal procedure and free- dom of expression, the bulk of activist professorial energy was devoted to legal clinics, and to landlord-tenant, consumer, social welfare and poverty law. Today, by contrast, legal clinics struggle to maintain the educational and com- munity organizing components of their mission. Landlord-tenant, consumer and social welfare law courses have become courses in judicial remedies. Civil liber- ties seminars have been re-engineered as human rights courses dealing with con- stitutional protections against the abuse of state power " paradoxically the one player best positioned to defend the vul- nerable from private power. One law fac- ulty now has no course in law and poverty, but eight offerings on aspects of human rights. Even when it survives, the teaching of issues relating to the distribu- tion of social power has been refocused as the analysis of judicial decisions. On-the-ground ”œwar on poverty” activi- ties no longer elicit much professorial enthusiasm and enter the student imagi- nation only as para- or extra-curricular commitments.
11. The place of craft and technique and a respect for legal form have been dis- placed by attention to abstract argu- ment and symbols. Two traditional staples of legal education are the profes- sorial excursuses on the propositions that ”œa judge came to the right result, but for the wrong reasons” and that ”œthe statute was meant to correct a mischief of the common law.” Lying behind these apho- risms is the belief that there is a distinc- tive craft and technique to law. Law is, of course, a political act, and the mobiliza- tion of law in support of a political cause is a key feature of modern legal practice. Litigation often is ”œthe continuation of politics by other means,” but law is not just politics. There is a particular craft to law and to legal analysis. One reason why a manner and form requirement such as that set out in the 1960 Canadian Bill of Rights had meaning was the respect for craft. Yet when a blanket override of the Charter was deemed in Ford to be a permissible use of section 33 some saw a conscious disregard for craft in the Supreme Court’s decision to treat what were carefully negotiated purposive arrangements as if they served no pur- pose. Increasingly law teaching takes manner and form requirements as mere formalities " abstracting from their evi- dentiary, channelling and cautionary purposes. Whether the topic is section 1 or section 33, and notwithstanding the contextual lines of inquiry invited by Oakes, abstract argument aimed at out- come rather than process too often frames classroom discussion.
12. Vast domains of legal regulation meant to enhance citizen agency have been consigned to the margins of legal consciousness. When I negotiated my initial teaching responsibilities in 1975, the ”œpenance” course to which I was assigned was administrative law " a subject no one then wished to teach. By the time I was myself a dean in the mid- 1980s I was obliged to give up teaching administrative law in order to induce a candidate to come to McGill. The past 25 years have witnessed the waxing in popularity of public and international law courses. While contracts and torts (taught as theoretical instantiations of corrective justice) still fire the legal imag- ination, many private law courses that focus on distributive justice and institu- tional design (for example, property, trusts, wills and estates, civil procedure) have dropped off the curricular ”œA-list.” As a consequence, little attention is now paid to the allocational assumptions of private law and the political economy that these assumptions reflect. The focus is less on how the common law may ”œwork itself pure,” or how legislatures may correct the injustices of private law through overtly distributive regulatory rules, than on how courts may deploy constitutional instruments to like effect. After first year, distributive policy is taught almost exclusively in public law seminars, and the bulk of private law courses are consigned to practitioners whose pedagogy aims prima- rily at an uncontroversial presentation of black-letter rules.
13. Law and its processes are conceived more as vehicles of social control than as institutions meant to facilitate human interaction. In the 1960s it was typically believed that the instruments of the state could be wielded in the service of human liberation and equality. The creation of agencies, boards and commis- sions and the enactment of legislation to regulate market transactions were held out as the preferred vehicles for promot- ing social change. Apart from the crimi- nal law, law was valued less for its constraining capacities than for its ability to empower the disadvantaged. The key spending programs of Canada’s second national policy " unemployment insur- ance, pensions, medicare and student aid " imagined a major role for govern- ment. The teaching of the Charter, by contrast, is often framed as if market-dis- rupting legislation is inherently wrong and constraining. Once the state is recast as the enemy of liberty, legal rights enforced by courts emerge as the key to protecting freedom. Inexorably, this leads to teaching that celebrates a mini- malist view of politics, a preference for limitations on economic redistribution and a belief that discrimination and inequality are caused by government ”œintervention,” not by private belief and behaviour (and the failure of the state to correct inequality). In this understand- ing, law facilitates human interaction not when legislatures enact redistributive programs, but rather when courts over- rule ”œdiscriminatory exclusions” from existing programs and benefits.
14. Empirical research has not achieved the role in legal scholarship predicted for it by those who built the Canadian legal education establishment in universities. Traditionally, as noted in the Law and Learning report, most law faculty research was doctrinal. Occasionally an article would deploy social science methodolo- gy " scalogram analysis, jurimetrics, for example " but these studies typically focused on the measurement and predic- tion of judicial decisions. Only in the late 1970s did the idea begin to take root that legal scholarship should consider outputs and consequences as well as inputs. Even then, empirical research was highly con- tested as a pet project of leftist radicals who promoted the development versity-based legal education.
Now, law teachers have practically abandoned field research, preferring broad ideological claims and citing dead white European males in support of anti-Charter ideology from the left, or living white American males in support of anti-Charter ideology from the right. Pro-Charter ideologues find comfort in a wider spectrum of socio-demographic authority, but none do empirical research. Neither today’s tabulators of judicial decisions who seek to prove excessive judicial ”œnullification” nor contemporary proponents of dialogue theory between courts and legislatures feel obliged to test their hypotheses with data about how police, public agencies or other officials actually respond to Charter decisions. As goes research, so goes teaching.
In addressing ex ante rights in the classroom, one need not be concerned with presenting statistics about the relative cost of political and judicial action (lobbying and litigat- ing), and the impact of these costs on dif- ferent categories of rights claimants and equality seekers.
15. Legal analysis grounded in abstract binary claims about the meaning of words has flourished at the expense of interdisciplinary legal research. Many critics of the Charter have bemoaned its tendencies to judicialize politics and to politicize the judiciary. These complaints, which may or may not be justified, are merely particular reflections of a more profound change in law’s rhetoric. The last three decades have seen the triumph of rights discourse as a mode of making political claims. Rights discourse tends to reduce complex political negotiation to binary (I win " you lose) claims that can be circumscribed within a pre-existing conceptual logic. Rights discourse also does not delimit the substantive content of claims: by definition, what any partic- ular litigant considers to be a right " for example, the ”œright to golf” " is for that litigant a right worthy of legal protection.
To see interpersonal relationships simply as a congeries of rights against others is to assume that fundamental issues of social policy can be represented as single- instance justiciable claims without refer- ence to systemic implications and the competing interests of those not actually present in the litigation. In such a ”œtheo- logical” universe, teaching validates pro- fessors as experts in any field having to do with the res publica, and dispenses them from having to engage in research and reflection about the politics, eco- nomics, sociology or ethics of the posi- tions they adopt.
16. Third-party decision-making in a framework of adjudicative due process has become the invariable recipe for solving social and interpersonal con- flict. During the 1960s and 1970s large chunks of public policy were developed by politically responsible agencies with- in which officials exercised considerable discretion. Increasingly, however, there has been pressure to require all decision- makers to find detailed textual authority for their exercise of power. Government action through explicit canonical norms has become the gold standard of law. Such a perspective has also moved our understanding of principles of human association from a concern for the informal and aspirational components of everyday life to a preoccupation with formalized rules of duty and entitlement. Following the Supreme Court decision in Nicholson many administrative law scholars sought to develop a conception of due process in public decision-making that respected the logic of procedural fairness, but that also was attuned to the wide diversity of social ordering processes deployed by statutory decision- makers. Today, despite the urg- ings of the Supreme Court in Knight, Baker, Singh and Khan to develop context-variable fairness standards, tribunals fall over themselves to emulate the procedures of courts. The teaching of policy development has been transformed in many faculties from a search for optimal processes of public decision-making attuned to the solution of polycentric problems of distributive justice into a quest for progressively refined models of adversarial adjudication.
17. Good governance, transparency and accountability are now thought achiev- able only through a judicially enforced rule of law. The idea of constitutional government in the parliamentary tradi- tion embraces a broad range of political, administrative, ethical and judicial prac- tices and institutions. Constitutional principles such as cabinet subservience to Parliament, individual ministerial responsibility, an independent civil serv- ice and the prerogative power of the Crown were central to legitimating polit- ical action. Over the three decades pre- ceding 1982 the temptations of power exercised by prime ministers trained as lawyers " St-Laurent, Diefenbaker and Trudeau " contributed to an erosion of these principles. Only Pearson seemed to understand that the statesman’s question ”œIs this what I should be doing?” was more important than the lawyer’s ques- tion ”œDo I have the legal power to do it?” Since the 1980s five more lawyers " Turner, Mulroney, Campbell, Chrétien and Martin " have accelerated the ero- sion. Contemporary law teaching rein- forces the mantra that only independent courts can guarantee openness, trans- parency, accountability and good gover- nance. A preoccupation with the judicial version of the rule of law means that rel- atively less attention is devoted to non- judicial institutions of accountability " ombudsman, auditor general, freedom of information commissioner, privacy com- missioner, ethics commissioner, public service commission and so on.
18. The ”œpassive virtues” in judicial decision-making have been undermined as other institutions routinely abdicate their political responsibilities in favour of courts. A concomitant of the view that third-party adjudication is the optimal process of social ordering is that the pos- sible is the necessary. Traditionally, courts were conceived as institutions of last resort. Consensual dispute resolution, negotiation, mediation, political lobby- ing, community organizing and other forms of social action were to be pre- ferred. Frequently, courts declined to act directly " citing doctrines like exhaus- tion, ripeness, mootness, no standing, no interest, political question and so on, in order to remit matters to other forums for determination (sometimes with and sometimes without guidance about base- line entitlements that should condition negotiation). Today, attornment to these passive virtues is on the wane, especially among law teachers. The blandishments of academic commentators, the aggres- siveness of certain litigators and the abdi- cation of responsibility by governments have induced some courts today to take jurisdiction in cases previously seen as beyond their mandate. Where a constitu- tional document can be held out as a polity’s primary vehicle for ”œframing val- ues,” public law teaching soon gives up on assessing the optimal institutional allocation of governance tasks. Instead its focus becomes illustrating that courts have the constitutional authority to take all manner of decisions, for all manner of reasons, in all manner of cases " and arguing that they should do so.
19. Constitutionalism is less preoccu- pied with the design of governance mechanisms, institutional competence and fixing an appropriate array of judi- cial remedies. A central characteristic of classical adjudication is that it imagines the resolution of actual cases and contro- versies on the basis of pre-existing rules as applied to settled past events. Admittedly, the case and controversy requirement has always been attenuated in Canadian constitutional law, as courts have typically agreed to give advisory opinions in ”œreference” cases. Likewise, in exercising their equitable jurisdiction courts issued simple and narrowly framed declarations, injunctions and orders for specific relief. Today, however, judges are routinely asked to issue intricate injunctions that require the spending of money on programs, the readjustment of government priorities and the detailed design of governance institu- tions. Many law teachers applaud this expansion of jurisdiction and compete to offer ever more complex coercive solu- tions to political conundrums that for- merly lay within the purview of the legislative and executive branches. Indeed, until the Chaoulli decision, whenever courts declined jurisdiction by raising the ”œinstitutional competence” argument or tailored a judgment in def- erence to it, their decisions were typical- ly taught as examples of judicial abnegation and irresponsibility.
20. The conception of the citizen as a constellation of particular identities deserving of recognition and protection now dominates understandings of legal subjectivity. Until the late 1970s most Canadian law faculties were instantia- tions of what John Porter called ”œthe vertical mosaic.” Courses, curricula and pedagogy assumed a ”œnormal” that reflected the preoccupations of the existing cohort of law teachers. Since then, the socio-demography of the pro- fessoriate has changed dramatically and law faculties have sought to make space for different perspectives that challenge the assumptions of inherited normality. It is now conventional in law faculty discourse to characterize particular iden- tities as fundamental to legal subjectivi- ty. While section 15 arguments can be understood as the consequence of the framing of pedagogy and courses around equality claims, the section has by ricochet given a boost to causes that can be presented in this fashion. So, for example, the same-sex marriage debate was not cast in terms of the policies that lie behind a governmental decision to provide for a legal structure within which persons in relationships of dependence and interdependence could build meaningful lives together. The claim was, rather, one of exclusionary discrimination. Almost noone argued that marriage ought no longer to be the touchstone of legal policy, even though the discrimination arguments could have been met either by including same-sex couples within the definition of marriage, or by simply getting rid of the concept. Not surprisingly, in legal education today the notion of equality tends to be argued as against existing discriminatory concepts and practices rather than as the search for even more expan- sive criteria that reframe the very grounds of inclusion and exclusion.
21. The neo-colonial experience of grad- uate education in constitutional law is increasingly being pursued in the United States rather than the United Kingdom. Until the 1960s the number of Canadian law teachers was relatively small. Moreover, throughout Canada the bulk of constitutional law teachers (Bora Laskin and Albert Abel being notable exceptions) had pursued graduate studies in the UK, if at all. A survey conducted a decade later found, however, that the tide had shifted: most young public law professors had studied in the US, while most private law professors did graduate work in the UK. Since 1982, the US gen- uflection has increasingly dominated constitutional law scholarship. The styl- ized doctrinal conflicts between original- ists and interpretivists and the simplistic left-right framing of US political debate have come to mute the rich strands of organicism in Canadian political and constitutional thought. Graduate stu- dents from Canada have been quick to adopt the dominant liberal intellectual paradigm, and seem strangely uninterest- ed in the developing civic republican strand of US constitutional scholarship. Hardly a surprise, then, that in the con- stitutional law teaching canon, Burkean ”œred Toryism” is now just a memory and socialism (except in certain communitar- ian variants) lives on only in wistful memories of Saskatchewan’s agrarian radicalism.
22. Professors generally, and constitu- tional law professors particularly, teach a court-centric model of the legal uni- verse. The traditional path to a post-war academic appointment in a Canadian law faculty passed by way of a graduate degree (typically a thesis LL.M.) rather than through private practice as had been previously the case. Beginning in the early 1970s, however, a further pedi- gree came to define suitability for a teach- ing appointment. Even though many more professors now have doctoral degrees, it is the judicial clerkship (and especially a judicial clerkship at the Supreme Court of Canada) that has become a ticket to a career as a legal aca- demic. Implicitly, the recruitment of judicial clerks and the promotion of judi- cial clerkships among students as indica- tors of merit reinforce the notion that the judiciary lies at the centre of the legal enterprise. Admittedly, many passionate academic Charterphiles did not serve as clerks, and several innovative and inter- esting neo-institutionalist law teachers did. Nonetheless, within law faculties the reality of constitutional law is generally perceived by students to be Charter litiga- tion. Today, writing memos to cabinet, drafting legislation and regulations, and planning governance through contract, taxation, subsidy, public-private partner- ships or the creation of new torts do not constitute a significant part of the consti- tutional law course syllabus.
23. Most law students are highly instru- mental in their approach to legal educa- tion and its contribution to their future activities in the law. Over the past 30 years the socio-demographics of the stu- dent cohort in faculties of law has changed considerably. On the plus side of the equation, one finds a much more diverse student body with over 60 per- cent of law students in Quebec today being women and more than 25 percent self-identifying as belonging to a visible minority. In addition, students arrive at the study of law with much more formal education " several already holding MA and Ph.D. degrees. And still again, many more students have had international experience working with ”œhuman rights” NGOs in Africa, South America and South Asia. Yet this changing cohort has the vices of its virtues. An increasing number of students today are cause ori- ented " but not in the manner of the power-contesting idealists of the 1960s. Many with experience in an NGO have noticed that those with law degrees wield disproportionate organizational power and imagine legal knowledge as an all- purpose tool. Having already decided what is ”œright,” they approach the study of law demanding access to the ”œkeys” that will enable them to bend others to their will. As student aspirations reveal themselves as increasingly consumerist, legal education itself becomes instrumen- talized. Teaching and learning law as a way of being alive " as a way of pursu- ing a life worth living " no longer fires the pedagogical imagination.
24. In the framing of legal practice, a conception of law as grounded in propo- sitional ethics has displaced the notion of law as grounded in virtue. A central feature of legal education in the era prior to the establishment of university-affili- ated faculties of law was the mentorship provided by senior lawyers to their arti- cling pupils and junior associates. Learning law was as much about learn- ing the role of a lawyer as it was about learning rules. When university-based law faculties assumed a larger place in legal education " in part because senior lawyers were either unwilling or unable to provide that mentoring, or if willing and able were hardly role models " the learning of rules of law came to occupy a larger place in the teaching endeavour. At the same time, because the intensive mentoring relationship was not feasible for professors, faculties acknowledged the need to ”œteach” legal ethics. Not sur- prisingly, within the university context, this teaching imagined ethics as the mas- tery of a set of universal propositions of proper behaviour set out in, for example, a code of professional conduct. Also not surprisingly, the teaching of these ”œethi- cal rules” involved the same rhetorical gymnastics as the teaching of ”œrules of law.” Today law teaching based on the virtue of being a good lawyer and citizen has largely abandoned itself to the siren song of propositional ethics. Only rarely do law professors commit themselves to an ethical mentoring role that requires students to engage directly with the demands of virtue.
25. Modesty in the claims for law as an institution of governance no longer char- acterizes law teaching. A central feature of classical legal education was modesty about lawyering. The formal law of Parliament and the courts was conceived as only one of the many normative insti- tutions of a healthy political community. Other organizations such as religious bodies, charities, clubs, voluntary associ- ations, communities and families had equal place as contributors to the shaping and achievement of human aspiration. Historically, governments subsidized self-directed and community- based initiatives; through the 1960s and 1970s, however, these unofficial institu- tions of social solidarity were gradually displaced by state agencies and spending programs. Now, a sense of economic enti- tlement and a public resistance to eco- nomic redistribution have compromised the state’s capacity to tax and spend for universal social programs. When govern- ments cannot spend money as a policy instrument, they spend law. In legal edu- cation this translates into the belief that all social problems can be cured by the enactment of legislation declaring them cured. It also produces the inverse belief. If a particular social ill has been cured, it is because law (and particularly the Charter) has so declared it. No longer do law teachers insist that students interro- gate the relationship between law and social change. No longer do they chal- lenge students to resist the facile deriva- tion of causation from mere correlation.
Since the advent of the Charter in 1982 there have been significant changes to legal education within Canadian law faculties. Why are these changes worthy of comment in a 25th anniversary celebration of the Charter?
Today’s law students are tomorrow’s judicial clerks, lawyers, legislators and judges. Almost half the practising bar in Canada learned the Constitution Act, 1982 alongside the Constitution Act, 1867; already Parliament is populated by many MPs who attended law faculties after 1982; several superior court judges and a handful of appellate court judges have also been suckled on the milk of Charter analysis. How law professors teach and what they teach mightily shape the attitudes, ambitions and aspi- rations of their students. These aspira- tions will then influence how students understand law for their entire careers.
We are all the creatures of our time and place, in an infinite regression back- wards. As a student of law teaching as practised in the late 1960s, I know that my legal world-view was shaped by a generation of professors educated 15 to 20 years earlier, just as I know that how I understood the coming of the Charter 15 to 20 years later cannot be dissociated from that 1960s experience. For law teachers of more recent generations, the Charter has become more than just the constitutional document it is for me. It is an icon for law and for legal education.
Whether or not changes to law teaching over the past quarter-century actually find their efficient cause in the Charter, ”œurban legend” holds this to be the case. Until each of them is held up to critical scrutiny we shall never know. Nor will we be in a position to judge if the second generation of Charter schol- ars who are just now entering the law teaching profession aim to chart a peda- gogical course from their immediate predecessors whose careers began in the first flush of Charter enthusiasm. Hence the importance of attending to the cen- tral components of contemporary legal education in Canada " its professors, its students, its doctrinal and substantive content, its methodological presuppositions and its philosophical commitments " and to the way in which these components have changed over time. Absent such an inquiry, we shall not be in a position to answer the question posed in the subtitle to this essay, for we shall have no conception either of teaching or of law.