In the process of writing my PhD, I have stumbled upon the writings of WPM Kennedy, the former Dean of Toronto Law School and writer of ‘Law as a Social Science’.
Writing in the 1930s, Kennedy believed that law should not be taught as a mere vocation or trade, but as a “fundamental social science.” Law schools, in his view, would teach not only the technical aspects of law, but also philosophy, political philosophy, history and the ideals of law reform.
As I understand it, his original essay I found is out of copyright but is not widely circulated. As such I would like to share it here. If it remains under copyright I will happily take it down. If not, I hope the following will inspire law lecturers, law tutors and law deans to rethink the way law is currently taught:
Law As A Social Science:
By W.P.M. Kennedy, M.A. L.L.B. Litt.D, Professor of Law in the University of Torronto.
The South African Law Times (May 1934)
Both personally and by correspondence, several distinguished members of the Bar in South Africa have asked me to make one of my Canadian Letters a discussion of our new experiment in legal studies at the University of Toronto. For obvious reasons, I would not care to do so; but as the request apparently discloses an interest in the matter in South Africa, and as our work has given rise to great interest in the United Kingdom, Australia, the Irish Free State and in New Zealand, where indeed the law journals have noticed it with favour, I now yield to the request.
First of all, I should like to try to state the basic principles of our work-the fundamental conceptions. These I discussed with my lifelong friend, Lord Haldane, and they can, in a degree, be summed up in the words of the present Lord Chancellor, speaking at Cambridge last year :-
“The mere practical lawyer to-day, however able, is not enough. The Courts are becoming more and more concerned with great social experiments. Law joins hands as never before with problems in political science, problems in the technique of administration. It is important that the curricula of our law schools shall send out lawyers trained to appreciate the meaning of social relationships. They must shape the mind to a critical understanding of the foundations of jurisprudence. Unless the training we give them supplies these perspectives there is a grave danger that the lawyer will not prove adequate to the big problems he has to help in solving. We are now on the threshold of an epoch of profound legal transformation. Our educational methods have to breed a race of graduates in law able to utilise the spirit of law reform for the highest uses. They have to teach at once the importance of stability and change. To do so they must know how to grasp the philosophic foundations. We must turn out graduates in law with a courage to criticise what is accepted, to construct what is necessary for new situations, new developments and new duties both at home and abroad.”
Now it is obvious that here is a conception of legal teaching quite other than the traditional technique peculiar to the professional law school. In the past the professional law schools-and indeed it is true of them to-day-have built their curricula largely round the traditional concepts of the lawyer-court decisions, statutes and text-books and treatises discussing and summarising the same. By the inductive method a student was led to form generalisations from this material which he called principles or rules of law, and from these he proceeded to fit various legal situations into them-a process of “intellectual inbreeding,” as Dean Smith, of Columbia University Law School, has excellently called it. Thus, the student was, at the end of his law course, familiar with legal concepts and rules, a legal method of thinking, with some skill in valuating legal data and with a fair knowledge of the history and meaning of the rules of law. But he knew nothing of the social meaning of it all, of its validity as social doctrine.
He saw nothing of law in relation to life, and he was quite unfit to see how law could be developed by legislation and judicial decisions as an instrument to serve society. He learned to think of it as a mere technician, a ” tradesman,” and had no other interests than those of trying to apply a set of technical rules to a given legal situation. As a consequence, as medicine, dentistry, engineering, theology, made vast strides in research, scholarship and in service, law stagnated, with few scholars, few creative minds- and all this for the simple reason that it was taught in the narrow, ” single-track ” atmosphere of professionalism, divorced from its living functions.
Here, however, I must enter a caveat. I do not think the professional school can do otherwise. Isolated from university life, with all the interest and clash of university faculties, the professional school cannot pass beyond these limitations. Narrow in its conception, narrow in its purposes, its reach was and is limited to its immediate grasp.
About ten years ago we founded in the University of Toronto a new Honour School of Law extending over four full years of actual attendance. To enter this Honour School we demand the highest possible qualifications : Complete Pass Matriculation (Latin, French, English, Algebra, Geometry, two Sciences) and complete Honour Matriculation (Latin, English, Mathematics, History, German and two Sciences). Thus, a student enters the Honour Law School at about eighteen and a half or nineteen years of age, with the best and highest equipment the country can give, and all students entering the School have uniform qualifications. In addition, I personally interview each student, even though he or she possesses these necessary and uniform qualifications, in order that I may gain some indications of his mentality and his attitudes and especially to see if he is adapted for the objects and aims of our legal studies, and not merely capable of the intellectual effort required. For we have no professional ends to serve.
We are concerned with legal education-to examine the law in relation to society, to probe into its social functionings, to create a body of citizens endowed with an insight into law as the basic social science, and capable of making those examinations into its workings as will redeem it from being a mere trade and technique and make it the finest of all instruments in the service of mankind.
Now, perhaps, the best way to illustrate our purposes is first, having already explained our aims, to outline with notes our courses and then to describe our methods of study.
(1) Roman History.
(4) Introduction to Legal Science.
(5) History of the Judicial System and Equity.
(6) The Law of Contract.
These courses, as all our courses, cover three hours a week each during a session lasting from September to June. The course on Roman History is not only essential for the Roman Law and comparative Civil Law of the second year, but also as a foundation in the knowledge of the development of Western civilisation, especially in connection with the influence of law on its developments. In Economies we aim at a correlation between the social and economic forces in society and those institutional and legal controls which economic theory and history disclose as working in necessary complement. The course in Philosophy is the first of a four-year course ; for we consider that all law is philosophy, and in this year the student is brought into -contact with the general principles of logical theory and with the nature and method of the various sciences. The course on the Judicial System and Equity is fundamental. For here-I give the course-I aim at tracing with definite documentary evidence the growth of the legal system in such a way as to show how far it arose and grew out of social demands to serve social ends, and how far it failed to do so. In other words, I stand with our present system before the students and work back to Anglo-Saxon times along the highways of life, law making and law enforcement and legal growth being our guide, but for our definite end.
The course on the introduction to Legal Science is one of our own peculiar creations, in which we provide a general view of legal ends and aims, with the special purpose of purging the student’s mind entirely of the dangerous tendency to consider law a study of unrelated rights and duties, of water-tight compartments, of isolated categories. The course in Contract is self-explanatory in one sense, but in another it is not. For here we study not only principles and cases, but we submit them to the keenest criticism. We take each concept, each rule, and we bring it, not before a court of justice, but before the court of social purposes and we ask how far it is serving society. Here the student comes full force, in substantive law, against the impact of our raison d’etre, and here he sinks or swims. We remove from the course at the end of this year, on an average, some 20 per cent. of the students. Thus we enter second year with a picked and tested body.
(1) Canadian Constitutional History.
(3) The Law of Torts.
(4) Criminal Law.
(5) Real Property.
(6) Roman and Comparative Civil Law.
(7) The Development of International Law.
The courses on Canadian Constitutional History and the Development of International Law form the necessary background for future work. We believe that our own constitutional law and international law are meaningless apart from their social and cultural origins. The course in Philosophy begins the study of modern philosophical thought in relation to civilisation, to social and political theory. The course in Roman and Comparative Law is our special creation in that Roman Law and its texts are studied in a manner rather unusual, for we seek specially to find out and value their contribution to modern legal systems, especially in Roman-Dutch Law and in the Quebec Civil Code. However, this is more than a mere comparison of origins and developments. We seek a cultural knowledge of causes and social workings.
The other courses are self-explanatory , with a continued emphasis on social ends and a comparison with other systems to try to find out how far torts, property and crime are treated in them and how successfully they are fitted into a socialised law.
(1) Political Science.
(3) History of English Law.
(4) English Constitutional Law.
(5) Administrative Law.
(6) Private International Law.
The course in Political Science brings the student into contact with taught political theory. He reads and discusses the great texts from Hobbes to Mill ; and all this is introduced in this year to run parallel with the study of public law. The course in philosophy is an extension in an intensive way of the third-year course. The History of English Law was a trouble, as it has always been. We think we have solved the problem by placing it after the student has studied the common law. He is then capable of approaching the history from the known ; and we are able to go back with him along the paths of legal history now glowing and illuminated with creative purposes and as Mr. Justice Holmes has well said, not with logic, but experience of the other courses. I would like to point out that in English Constitutional Law I eliminate all the archaeology of Anson and Dicey and so on. We take the public life of a modern State, we divide it into activities, and we study the leading cases word for word, reference for reference, in relation to them. Our greatest achievement here is Administrative Law. I have already written of this subject in previous letters. It has become so vast and complex that it could no longer be given with Constitutional Law. Here we are pioneers, and successful pioneers.
(1) Modern Political Science.
(3) Canadian Constitutional Law.
(4) Comparative Constitutional and Administrative Law of the United States and the Dominions.
(5) Industrial Law.
(6) Municipal Law.
(7) Public International Law.
In the work of this year the titles of the courses indicate their subject-matter, the aims and purposes of our School being intensified. But I should like to point out that the entire work of the Honour School culminates in the Jurisprudence, in which knowledge of the Common Law, of Roman Law, of modern Civil Law, of Public Law, of Administrative Law, of Public and Private International Law, of Industrial Law, are submitted to philosophical, juristic and sociological criticism. All that has gone before is brought to the test of social demands. We spend no time over the historical or analytical jurisprudence. Austin, Holland, Salmond and such-like make way for sociological jurisprudence as expounded by modern French, German and American jurists.
Finally, this Honour School in Law has given birth to a graduate school for the Master’s and Doctor’s degrees. Here, once more, we have worked out our our scheme. We proceed rather along European than American lines, and we take no student who is not a distinguished graduate in law. We avoid formal and “time-table ” instruction. We guide a man or woman who wishes to work at some worthwhile legal problem-“worthwhile” in the sense of sociological import. We encourage individual research, confidence in critical judgments, and, above all, the idea that law is not fundamentally a system of trials in courts, but a condition of civilised life, of which it is at once the guardian, the product and the servant.
Of our methods, we give few if any formal lectures. We work at problems with small groups of students. The students present written, documented work, which is discussed with professor and fellow-students. The case-method we use throughout ; but it is our servant, not our master. In addition, we have two ancillary organisations, created so as to avoid work ” in vacuo -the more ” academic.” Our Law Club meets once a month, at which an expert lawyer or jurist presents a problem for an hour or more and it is then open for discussion. Our Moot Courts meet twice a month, attended by practising lawyers. These two organisations complete our methods. For we believe that our fundamental aims would be somewhat in vain were our work not related to the actual law in operation, just as we believe that lawyer, judge and administrator should be brought into contact with well-based sociological foundations and principles in law. We therefore have organised frequent intercourse between our Honour School and those to-day engaged in legislation in judicial and administrative work,
To sum up an experiment unique in the British Commonwealth: First of all, ours is a University course, and thus it attempts to carry out Lord Haldane’s conviction that the real study of all can only be carried out amid the clash of university faculties. Secondly, we study law as a social science, a great creative process of social engineering, in which a deep and intensive inquiry is made into the social value of legal rules and principles, and a search is pursued in every field of law to find out how far it is in truth serving the true ends of society. We relate law to life, not life to law.
I would like to conclude on an important point. The Honour School in Law is not a professor’s course. We encourage criticism and suggestions from our graduates. We meet them specially after graduation and we learn from the student’s experience much that is of value to us. I believe that all this is vital to us. It creates a condition of practical interest in our work and it keeps us keenly alive to the most important partner in our work-the student himself, on whom depends fundamentally the successful carrying out of those aims and purposes for which this Honour School was created.