Law Schools in Canada: Writings of the First Toronto Law Dean W.P.M. Kennedy (2)


W.P.M. Kennedy, Journal of the Society of Public Teachers (1933)

My purposes in this article are narrowed to two points : (i) a statement of the teaching of law subjects in Canadian Universities for purposes and aims other than those to which Dean Falconbridge has done full justice ; (ii) to outline the work with which I am most familiar, in the University of Toronto.

I am not unaware that the aims and purposes behind our work in the University of Toronto are not idiosyncratic, and that my colleagues in other Universities have similar ends to serve. However, I draw special attention to them because we proceeded deliberately and definitely to follow those ends outlined by Lord Atkin, and referred to by the Lord Chancellor when speaking at Cambridge :

“The merely 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 economics, 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 these relationships. They must shape the mind to a critical understanding of the foundations of jurisprudence. Unless the training we give supplies these perspectives there is 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 lawyers able to utilize the spirit of law reform for the highest uses. They have to teach the importance at once of stability and change. To do so they must know not only how to grasp the philosophic foundation of those decisions. We must also turn out lawyers with a courage to criticize what is accepted, to construct what is necessary for new situations, new developments, and new duties both at home and abroad.”

In order to facilitate reference, I shall deal with the Universities by Provinces, leaving for final review the work at the University of Toronto. I should like, however, to say that I am quite conscious that my article may be incomplete and that-I may unavoidably have overlooked some courses. However, I can only plead in defence that I have had only a limited time for investigation.

  • University of British Columbia: Two courses are given in Commercial Law in the School of Commerce.
  • University of Alberta: There is a combined course (B.A., LL.B.) covering six years. That is to say, certain law subjects can be taken in the course leading to the B.A. degree.
  • University of Saskatchewan: There is also a combined course (B.A., LL.B.) as in Alberta. In addition, in the School of Accounting, courses are given in Commercial Law, Statute Law (limited to commercial subjects), Company Law, Provincial Municipal Law.
  • Queen’s University: In the School of Political Science and Economics, courses are given in Canadian and English Constitutional Law and International Law. In the School of Commerce and Administration, the same courses are given with the addition of Commercial Law.
  • University of Western Ontario: There is a Division of Law and Government in the Honour School of Economics and Political Science, in which Roman Law, English Constitutional Law, Colonial Constitutional Law, Public International Law and Jurisprudence are optional subjects, credit also being given for them in the LL.B. course. In the School of Commerce, courses are given in Commercial Law.
  • McGill University: In the School of Engineering, courses are given in Engineering Law. In the School of Commerce, courses are given in Contracts, Agency and Company Formation, Sale of Goods, Insurance Laws, Trusts and Executors, Bankruptcy.
  • University of New Brunswick: Certain subjects of the first year. B.C.L. are elective subjects in the third and fourth years of the B.A. course.
  • University of Mount Allison: Contracts and International Law are among the courses for the B.A. degree.
  • Dalhousie University and University of King’s College: During the B.A. course students may take certain subjects of the first year LL.B., and thus may complete the latter courses; in two years. In the School of Political Science, courses in Constitutional and International Law are given.

In the University of Toronto for many years several law courses were given as a compulsory part of the Honour School of Political Science and Economics. Owing to the unavoidable development in subjects, the school was divided into two parts : (i) Political Science and Economics ; (ii) Political Science and Law.

This arrangement was soon found to be academically unsound, and, as a consequence, a new Honour School of Law was created, autonomous and self-contained, and this is the organisation to-day.

Students who enter the four years’ course in the Honour School in Law must have passed complete Pass Matriculation (including Latin, French, Mathematics, History, English, and a science) and complete Honour Matriculation (including Latin, French, Mathematics, History, a science, and frequently German, which is advised). The Honour Matriculation represents our highest test in secondary school work. Thus, then, our students possess certain uniform honour matriculation qualifications. In addition, each student desirous of entering the Honour School in Law is personally interviewed, and advised as to his adaptability for the course, which has no professional or vocational aims, considering that its members enter not merely the practice of law, but the civil and diplomatic services, administrative and academic appointments, commercial and public life, and the graduate schools of Canada, England, and the United States.

The course may be outlined with necessary comments.

FIRST YEAR (a) Greek and Roman History. (b) Economics. (c) Philosophy. (d) Introduction to Legal Science. (e) History of the Judicial System. (f) The Principles of the Law of Contract.

The course in Greek and Roman History forms the necessary background for the study of Roman and Civil Law. That in Economics aims to provide such knowledge of Economics as will fit into a study of legal science. The course on the Introduction to Legal Science has been specially created to provide a general view of the ends and purposes of law, and in order to counteract a dangerous tendency among students to see law as a study of unrelated rights and duties. The course on the Judicial System has been introduced for exactly the same reasons as governed its introduction in Law Moderations at Oxford. The course in Contract is self-explanatory ; it is, however, not only the learning or deduction of principles, but also a criticism of the social ends which the Law of Contract ought to serve. The course in Philosophy deals with the general principles of logical theory and with an inquiry into the nature and methods of the various sciences.

SECOND YEAR (a) Canadian Constitutional History. (b) Philosophy. (c) The Principles of the Law of Tort. (d) Criminal Law. (e) The Land Law. (f) Roman and Comparative Civil Law. (g) The Development of International Law.

The courses in Canadian Constitutional History and in the Development of International Law constitute a necessary background for the Constitutional and International Law of subsequent years. The course in Philosophy covers the developments of modern philosophical thought in relation to the history of civilisation and to social, legal, and political theory. The course in Roman and Comparative Civil Law differs somewhat from similar courses in England, in that Roman Law is studied specially for its contribution to modern legal systems which, and especially the Quebec Civil Code, are included for purposes of comparative study. The other courses are self-explanatory, with a continued emphasis on social ends and functions.

THIRD YEAR (a) Political Science. (b) Philosophy. (c) History of English Law. (d) English Constitutional and Administrative Law. (e) Administrative Law. (f) Private International Law.

The course in Political Science covers the theory of the State from Hobbes to Mill, and is specially introduced in this year to run parallel with the beginning of the study of Public Law. The course in Philosophy begins the study of modern philosophy with reference to its social and legal aspects. Of the other courses it is only necessary to say that the subject of Administrative Law has become one of such fundamental importance that it has been found necessary to give it independent and detailed treatment. The History of English Law gave us much trouble ; but we have found that its greatest educational value is secured after a student has studied the Common Law.

FOURTH YEAR (a) Political Science. (b) Philosophy. (c) Canadian Constitutional Law. (d) Comparative Constitutional and Administrative Law of the United States and the Dominions. (e) Industrial Law. (f) Municipal Law. (g) Public International Law. (h) Jurisprudence.

The course in Political Science is a continuation of the previous course. Of the other courses I should only like to point out that they are specially taught in relation to the social and economic influences which seem to govern or ought to govern judicial decisions and statutory or other rules. Finally, the course in Jurisprudence is the culminating point in the Honour School of Law, in which the knowledge of the Common Law, of Civil Law, of Public Law, of International Law are submitted to philosophical and juristic criticism. The previous courses are gathered together and studied in the light of the demands of society. Analytical and historical jurisprudence makes way for sociological jurisprudence as expounded by the modern French, German, and American jurists.

To sum up: the Honour School of Law in the University of Toronto was deliberately created with certain definite ideas behind it, to which Lord Haldane lent his constructive skill in the actual drafting of the courses. First of all, it is a University course; and Haldane’s conception that the study of law flourishes best amid the intellectual clash of University faculties is mirrored in it.

Secondly, its raison d’etre is the study of law as a social science, a process of social engineering, in which the knowledge of practical work-to which bimonthly moot courts, attended by practising lawyers, contribute–is deepened by an educational purpose, by an inquiry into the social worth of legal doctrines, and, above all, by a critical attempt to find out if law in its various aspects is in reality serving the ends of society.

We attempt definitely to avoid what Dean Smith of Columbia University Law School has admirably called the intellectual inbreeding of legal teaching. The staff in law also give courses in Commercial Law in the School of Applied Science and Engineering, and in Administrative Law in the School of Forestry. – At the moment arrangements are being made for courses in Commercial Law in the Honour School of Commerce, and in Criminal Law in the Honour School of Psychology. A student who has graduated in the Honour School of Law is admitted to the second year of the LL.B. course. I should like to say one word about our methods of teaching.

We have no uniform standardised technique. We seldom teach by lectures, but rather employ tutorial classes and the case-method in all subjects. We prefer, however, to fit methods to a subject rather than to fit all subjects into a uniformity of method. Each member of the staff is absolutely free, and thus the purposes and aims of the School are better served.

In conclusion, the organisation which I have just outlined has developed into a graduate school leading to the master’s and doctor’s degrees. At the moment it is hard to see where this may lead ; but at present there are registered three students reading for the doctor’s degree and sixteen reading for the master’s degree, and we are faced with a larger registration next session. The numbers, however, must not give a false impression of a teaching burden. Here again we have deliberately worked out our own scheme, which is along English and European lines and not along American. No student is admitted as a graduate student in law unless he is already a graduate in law. We avoid formal instruction as detrimental to our entire conception of graduate work. Each student is guided not taught. We accept students who wish to work at some serious and worth-while legal problem. We completely avoid all the mechanical and depressing burden of a ” timetable ” which too frequently turns graduate work into a glorified continuation of undergraduate courses, in order to encourage individual research, self-confidence in judgment and form, and, above all, a realisation that the problems of law are problems not primarily of the law courts but most profoundly of organised community life, of which law is at once the condition, the product, and the servant.