Law at McGill: Past, Present and Future
Stanley Frost* and David L. Johnston**
Introduction
The senior professional schools at McGill University are those of
medicine and law. Teaching in medicine commenced at the Montreal
Medical Institution in 1823 and the McGill Faculty of Medicine was
established in 1829. Legal education did not get its start until 1844, in the
Faculty of Arts.
We suggest that the reason for medicine’s earlier beginning lies partly in
the different role of the hospital and the lawcourts in the two professions,
and partly in differences in the client-practitioner relationship. The medical
student’s experience of “walking the wards” of a teaching hospital in the
wake of the professor-physician is a major element in the learning process.
The lawcourts, however, do not provide opportunities for the professor-
lawyer to incorporate his students in the conduct of his case, nor can he
introduce his client to a seminar in order to discuss what legal advice should
be given. Whereas a medical career can combine practice and teaching to
their mutual advantage, there is a tendency in the legal profession for the two
functions to compete, to the detriment of one or the other. It is
understandable, therefore, that teaching in medicine began at McGill
because the physicians wanted to teach, whereas teaching in law began
because third parties urged it upon the lawyers. This also accounts in large
measure for the fact that although the legal discipline was introduced very
early into the curriculum, its development was slow. It was not until the years
after World War I that law emerged strongly as an academic discipline. In
the early days the typical law professor was a lawyer who happened to do
some teaching on the side and it was only in this century that the concept of
the academic lawyer gained acceptance in Canada. This paper reviews
something of the past history of the faculty and then looks at its present
circumstances, before suggesting some further developments which we
believe to be desirable.
I. Law at McGill in the Past
William Badgley, a prominent member of the Quebec Bar, was
appointed lecturer in law in April 1844, six months after the inauguration of
the Faculty of Arts of McGill College. At the opening ceremony in
September 1843 the vice-principal had eloquently expounded the virtues of a
* Director, History of McGill Project; formerly Vice-Principal (Professional Faculties),
McGill University.
** Principal and Professor of Law, McGill University. This article is a shortened version of
a paper delivered by the Principal to the James McGill Society on 18 September 1981.
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classical education. Badgley’s appointment as lecturer in law was intended to
appease those Montreal citizens who even in 1844 were contending that a
more practical education would provide greater benefits for Canadian
youth. However, that same month Badgley was also appointed a circuit
judge, and he apparently did not devote much attention to his academic
duties. In February 1846 the Caput, i.e., the academic council, noted that he
was neglecting to lecture, and informed him that if he did not mend his ways
his appointment would be terminated. He must have heeded the warning,
for in March of the following year he was confirmed in his position.
A certain democratic freedom, reminiscent of the early days of the
Universities of Bologna and Paris seems to have been prevalent in Montreal.
In 1848 a group of twenty-three young men who described themselves as
“students composing the Law Class of McGill College” signed a document
whereby they agreed to attend Badgley’s lectures, and enrolled themselves as
members of his class “in accordance with the Resolution adopted at a
meeting held at the Court House on the nineteenth day of June”.’ This
matriculation en masse is not reflected in the university records, and the
student initiative, if it came to anything, must have done so beyond the aegis
of McGill College. This incident shows, however, that the pressures for legal
education came not only from the professional and merchant classes but also
from prospective lawyers. The student contribution to the development of
law-teaching has been, as we shall see, significant and continuous from the
earliest times.
Under the Amended Charter of McGill College of 1852, the reformed
Board of Governors made Badgley a professor in 1853 and in 1854 he was
appointed dean and given two colleagues, John Abbott and Frederick
Torrance. This was the beginning of a separate law faculty, but the three
members were told that “their emolument would be the subject of future
consideration”, i.e., their main academic income was to come from their
students’ fees. These fees were supplemented at the end of the year by a
modest grant of 500 to each of the three teachers.2 This began a practice
which prevailed until 1898, whereby the university made an annual
discretionary grant which was divided pro rata among the professors and
lecturers. For most of the lawyers involved, their academic “emoluments”
remained a small part of their total income.
Formal instruction at first took place in the lawyers’ offices, and even
when the faculty acquired premises of its own, the argument that the
IA copy of the document hangs on the wall outside the Dean’s office in Chancellor Day
Hall; its provenance has not been established. Among the names are those of Alexander
Morris, W.B. Lambe, Brown Chamberlin and Romeo Stephens –
four of the first class of
five men who graduated with the B.C.L. degree in 1850.
2 Minutes of the Board of Governors of McGill College, 27 July 1854. McGill University
Archives [hereinafter cited as MUA ] 681 / 3A.
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LAW AT McGILL: PAST, PRESENT AND FUTURE
33
operation must be near the lawcourts and legal offices kept it in rented
premises downtown. The connection with the university was in fact tenuous,
and the quality of legal education in the province in general was such that in
1863 a recent McGill graduate, Gonzalve Doutre, organized a petition of law
students to be presented to the Bar, directed towards “changing the present
type of examination for those aspiring to the study and practice of the
profession of lawyers.” 3 His proposals were accepted and became law in
1866, but the passing of the Act did not effect a permanent improvement. A
decade later McGill law students complained to the Board of Governors of
the irregularity of their lectures, while the graduates petitioned that the
standards of education for the B.C.L. degree should be raised. In 1887 the
problems were still unsolved and Principal William Dawson had to deny
publicly the charge that law lectures were scheduled but not given.
“According to the returns made by the secretary of the faculty”, he wrote,
“over 300 lectures were delivered”. He argued that four or five hundred
lectures of superior quality might prove more valuable than “the one
thousand or more” lectures which the Secretary of the Bar Council thought
each student should receive in the course of his legal education. He also
commented that “law students are usually under apprenticeship, and are
obliged to devote the greater part of their time to office work”.4
The major difficulty was that the university lacked the funds needed to
provide adequately for the faculty; in particular, it could not compete with
the income a capable lawyer could earn in the practice of his profession.
Badgley resigned his academic position temporarily in 1855 and John
Abbott became dean and professor of commercial law. He remained in
office until 1880. During those twenty-five years he served in the Legislative
Assembly as the member for Argenteuil, and prepared and piloted through
the House the Insolvent Act of 1864. 5 He bought the Montreal-Bytown
Railway, helped Sir Hugh Allan form the railway company which was to
build a line to the Pacific coast and was implicated in the subsequent political
scandal. He also wrote the historic contract between the federal government
and the reconstituted Canadian Pacific Railway. At the same time he
conducted a practice described by a contemporary as “of enormous
proportions”. But through it all he remained McGill’s professor of
commercial law. Obviously he brought great prestige to the deanship, and
immense authority to the course in commercial law, but it is difficult to
establish how much deaning and how much professing he actually
accomplished. His colleague Frederick Torrance, the professor of Roman
law, was probably more consistent. He remained in practice until 1868, when
he was appointed a judge of the Superior Court of Quebec. Two other
3 M. La Terreur, Dictionary of Canadian Biography (1980), vol. X, 249.
4 Dawson, Letter to the Editor, The Montreal Gazette, 19 April 1887, 2, col. 3, para. 4.
5 Statutes of the Province of Canada, 27 & 28 Vict., c. 17.
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lecturers were added, Me R.G. LaFlamme and Me P.R. Lafrenaye. They
were lawyers of considerable standing who further enhanced the faculty’s
reputation, but they too were busy men.
The pressure for full-time law appointments continued to come from the
Board of Governors. In 1884 the faculty received an endowment of $35,000
to set up a chair in the name of Samuel Gale, a distinguished jurist and judge.
The faculty proposed that the dean should occupy the Gale chair, but that
the income from the endowment should be added to the discretionary
university grant and as before, distributed pro rata. The Board disagreed,
and ruled that all the income should be wholly devoted to the dean’s
academic salary, obviously with the intention of making the incumbent
something nearer to a full-time appointee. Six years later, William
Macdonald gave the faculty $150,000, which he later increased to $200,000.
In the
letter accompanying his donation, Macdonald underlined the
statement that each of the two lawyers to be supported by this endowment,
the dean and the secretary of the faculty, would be required to “devote
himself zealously to the management and continuous advancement of the
faculty and instruction therein.” 6 In 1897 Frederick Walton accepted
appointment as dean on this understanding, and served until 1914. He was
the first career law professor associated with McGill and probably the first in
Canada. Just prior to Walton’s appointment, Macdonald had shown further
interest in the faculty by paying for the rehabilitation of Dawson Hall so as to
provide it, for the first time, with a home on campus. Lectures were given in
the Arts Building and the law library was brought back from the Fraser
Institute to be housed with the university’s collections in the Redpath
Library. The training of lawyers thus became more truly an academic
process, and the faculty became fully integrated with the university for the
first time. Macdonald also provided several travelling scholarships for post-
graduates. The academic horizons were broadening quickly.
Further advances were not achieved until, on Walton’s retirement, the
university opted for a different style of appointment in seeking to replace
him. It should be recalled that the McGill Law Faculty was in a position
shared by very few institutions in the world. Because it was situated in the
province of Quebec, it was teaching civil law, a legal system derived from
French jurisprudence and based on Roman law, but it was doing so in
English. All faculty members had hitherto been appointed from the Qu6bec
Bar. There was little inducement to make appointments of jurists from other
Canadian jurisdictions, since they would not be versed in the Civil Code, and
in Montreal they would be deprived of access to common law practice. It
was, therefore, a step of major proportion when in 1915 Principal William
6Minutes of the Board of Governors of McGill College, 5 April 1890. M UA 681 / 5A. See
also S. Frost, McGill University: For the Advancement of Learning 1801-1895 (1980), vol.
1,279.
1981]
LAW AT McGILL: PAST, PRESENT AND FUTURE
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,Peterson went outside the Qu6bec Bar and recommended Robert Warden
Lee of Oxford for appointment as Walton’s successor both as professor of
Roman law and as dean of the faculty.
Like Walton, Lee was a full-time academic, a man who saw his future
career not in terms of a large practice or a position on the bench, but in terms
of university appointments. He saw legal education as more than a training
for practice at the Qu6bec Bar, and when in April 1915 the faculty
recommended appointing a lecturer in common law, Lee was undoubtedly
the moving spirit. In 1919 he followed this initiative by sending to Frank
Dawson Adams, the acting principal, a considerable memorandum on the
subject of McGill as a law school for all of Canada.7 When Sir Arthur Currie
was appointed principal in 1920, Lee sent him an expanded set of proposals.
He began from the premise that Montr6al was uniquely fitted to be the home
of a great law school, since it was an international metropolis and the
meeting place of two great legal systems. The essential conditions for a good
law school, he continued, were threefold: students should be full-time in
attendance at the university, professors should be committed full-time to the
academic pursuit of law, and professors should be appointed because they
were qualified to study and to teach law, not because they had been
successful in the practice of their profession. He reported that for the
students intending to practice in Qu6bec the faculty had strengthened the
course for the B.C.L., and for those who wished to study law but not to
practice it, or who intended to practice in another jurisdiction than Qu6bec,
the faculty had instituted a new common law program, leading to the LL.B.
degree. There was also a four-year program leading to both degrees for those
who planned to go further in legal studies or to practice in another
jurisdiction. These developments were timely, he argued, because of the
great increase in student numbers. “The first year registration this year”, he
reported joyfully, “is phenomenal.” It exceeded eighty and was not then
complete ; the students were coming from all over Canada and beyond. “Our
faculty”, Lee proudly asserted, “has ceased to be a merely provincial
institution.”8
It would be interesting to speculate how the law faculty might have
developed if Lee had stayed on as dean. Unfortunately, Oxford offered him
the chair of Roman and Dutch law and he resigned his post at McGill in
1921. Before departing he recommended H.A. Smith of Oxford and Ira
Mackay of Saskatchewan as new appointees. Both men continued the Lee
initiative in taking a broader view of law than that derived only from the
Quebec civil law, and both wrote significant articles on the subject of legal
education.
7R.W. Lee, Letter to F.D. Adams, 30 October 1919. MUA 641/293.
8 R.W. Lee, The Law Faculty of McGill University: Its Past, Present and Future and
Letter to Sir Arthur Currie, 4 November 1920. MUA 641/293.
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Ira Mackay was an extremely interesting person, both as a lawyer and as
a philosopher. He had been a professor of both disciplines in Saskatchewan
before coming to McGill and would undoubtedly have been a major
liberalizing influence in the faculty had he remained with it, especially since
he was appointed to teach constitutional law. But after two years he
transferred to the Frothingham chair of logic and metaphysics in the Faculty
of Arts. In 1925 he became dean of Arts and served in that capacity until
1934. While he was still a political scientist and a professor of law, he
published an article, “The Education of a Lawyer”, of which his fellowjurists
thought so highly that they reprinted it twenty-seven years later. In his
address, Mackay strongly supported the concept of the scholar-lawyer. He
deplored the “half-law school” and declared that for a “first-class law
school… two things are necessary, viz: legal research and uniform legal
education, based upon the results of research…. No department of study has
ever presented a prettier field for research and for lively classroom teaching
than English law.” 9 He was greatly concerned that, with judgments being
rendered simultaneously in England, the United States, Australia, New
Zealand and in the common law provinces of Canada, the system would lose
cohesion and lapse into self-contradiction and anarchy. Hence he saw the
need for uniformity at the level of legal education. How that consensus was
to be achieved, other than through research, he did not say, and his return to
philosophy distracted him from pursuing the idea further.
H.A. Smith’s discussion of the functions of a law school, published
about the time he came to McGill, was not so innovative as Mackay’s and in
fact did not go very far beyond reiterating the ideas which Lee had already
expressed. But his proposals, because they were more practical, stood a
better chance of being implemented. He emphasized the need for full-time
appointments, and the need for law-teachers to be interested in lawperse –
not simply as a means to practicing at a particular Bar. He made much of
American examples: “Can anyone imagine that Harvard greatly concerns
herself with the local requirements for practice at the Massachusetts Bar ?…
By thus emancipating themselves from purely local and professional
trammels the chief American law schools have been enabled to play a part in
the public life of the nation for which we can find no parallel in Canada.”’10
9 Mackay, The Education of a Lawyer (1940) 4 Alta L.Q. 103, 110. Mackay’s
paper was privately published after being presented at the Third Annual Meeting of the Law
Society of Alberta held in Calgary, 18-9 December 1913. Perhaps it was not republished in
his lifetime because as Dean of Arts at M-Gill he may have regretted some of the stronger
statements in it: “The temper of an arts school is very different from the temper of a
professional school. There is undoubtedly a great deal of dilettantism and intellectual play in
our traditional arts course. After all an arts course is a sort of preliminary canter in life. But a
law course is a serious matter. An arts course is intended for boys, a law course for men. The
law is a jealous mistress”, at p. 114.
10Smith, The Function of a Law School (1921) 41 Can. Law Times 27, 28.
1981]
LAW AT McGILL: PAST, PRESENT AND FUTURE
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Smith lays a particular emphasis on the need for scholars who can contribute
to the growth of legal literature: “Among the great names in the history of
legal literature may be reckoned many who have learned and taught in
American law schools. Here again there is no real parallel to be found on the
Canadian side”.” He desiderates “a comprehensive library, reasonable
leisure for study, and, where necessary, University assistance in the
publications of works which cannot be certain of obtaining commercial
success.”‘ 2 It was a classic statement of the traditional scholar’s modest
requirements – modest, that is, until all the auxiliary costs are considered.
But the breadth of the McGill vision had been revealed to the legal public
and its academic ideals had been placed on record.
One of the indications of the growing professionalism of the faculty can
be seen in the changes in the hours of scheduling classes. In Dawson’s day,
there seem to have been no set hours. The Calendars of the early 1900s say
that classes will be given between 8:30 and 9:30 a.m., and 4:00 and 6:30 p.m. –
obviously because most law students spent the day in legal offices. In 1927
the Calendar says for the first time that “students should devote their entire
time to university work”, and this progressively became the rule, leading
finally to the institution of the additional year of professional training.
Smith did not find the legal atmosphere wholly congenial at McGill.
While acting as dean in 1923 he wrote to Principal Currie13 saying that he felt
a common lawyer – was in
his colleagues resented the fact that he –
charge of a faculty largely composed of civil lawyers. Currie reassured him
and informed him of his permanent appointment as vice-dean; but the
deanship was indeed reserved for a member of the Qu6bec Bar.14 Smith
continued to teach at McGill until 1928. He was not without grounds in
thinking that there was some resentment of his position – not so much as
acting vice-dean, but as a teacher of common law courses. 15 There were
those in the faculty who felt that Lee had led the law school astray, and that
McGill did not have, and never would have, the resources for a “national”
program. In 1924 their view prevailed and the courses for the LL.B. and the
four-year joint B.C.L.-LL.B. were discontinued. The faculty’s resources
were to be concentrated on the training of anglophones for the provincial
as the Board of Governors had observed 16 when Lee first
legal system, for –
made his far-ranging proposals –
the maintenance of a good anglophone
representation at the Qu6bec Bar was essential for the well-being of the
English-speaking community in Montreal.
” Ibid., 29.
12 Ibid., 32.
13 H.A. Smith, Letter to Sir Arthur Carrie, 4 August 1923. MUA 641/293.
14 Sir Arthur Currie, Letter to H.A. Smith, 6 August 1923. MUA 641/293.
15 H.A. Smith, Letter to Sir Arthur Currie, 9 August 1923. MUA 641/293.
16F.D. Adams, Letter to R.W. Lee, 12 January 1919. MUA 641/293.
McGILL LAW JOURNAL
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Smith departed in 1928 for London to follow a distinguished career as
professor of international law in that university. There is no doubt that in
both Lee and Smith McGill had had the experience of excellent academic
lawyers. It would be easy, in view of the termination of the common law
program, to say that they had been prophets before their time, or at least that
McGill was not ready for them. However, the fact is that the faculty was
never again open to the charge that it was a “trade-school” operation only.
Lee and Smith had started something which in future years would become
increasingly significant.
The full-time deanship was given, as we have said, to a prominent
member of the Quebec Bar. He was Judge R.A.E. Greenshields, of the
Qu6bec Superior Court, who had previously taught criminal law as a part-
time lecturer. As dean he continued with that teaching responsibility.
Another Qu6bec lawyer, C.S. Lemesurier, was appointed professor of
commercial law. But the Gale chair was given to Percy Ellwood Corbett, and
he certainly stood in the Lee-Smith tradition. Corbett was a McGill graduate
in arts at both the bachelor’s and the master’s level, who had studied law at
Oxford as a Rhodes Scholar. He had served as Assistant Legal Advisor in
the International Labour Office in Geneva before coming back to McGill
and he stayed with the faculty for fifteen years. He was appointed dean in
1928 and held that office for eight years. Corbett was a great internationalist:
he published Canada and World Politics with Smith in 1928, just before the
latter left for London, and in 1934 his own Fundamentals of a New Law of
Nations. He was thus contributing to a tradition which was already making
McGill the pre-eminent Canadian school for the study of international law.
One of his students was John Humphrey, a McGill graduate in arts,
commerce and civil law, who did post-graduate work at the University of
Paris and then taught international law in the faculty from 1936-46.
Recognizing that the average law student would find the subject of little
practical advantage, Humphrey sought to teach international law as an
exercise in legal science, thus requiring even the most practice-oriented
student to consider the further implications of his profession at least once
during the course of his legal education. Humphrey left McGill to become
the first director of the Division of Human Rights in the United Nations
Secretariat. He returned to McGill in 1966 as professor of law and political
science.
Another field which the practice-oriented student might regard solely in
terms of intellectual exercise was that of constitutional law. Francis Reginald
in 1928 as a result of the departing Smith’s
Scott was appointed
recommendation. In his letter of resignation Smith wrote that he considered
Scott “unquestionably the best student who has graduated here”‘ 7 in his
17 H.A. Smith, Letter to Sir Arthur Currie, 16 December 1927. MUA 641/293.
1981]
LAW AT McGILL: PAST, PRESENT AND FUTURE
39
time. During a lifetime of multifarious activities embracing everything from
poetry to politics, Frank Scott found time to establish his reputation as one
of the outstanding constitutional lawyers of his day. The links between the
Faculty of Law and the Department of Political Science have always been
many and close, and the consideration not only of what the law is, but also of
what the law should be –
especially in matters relating to the Canadian
constitution –
offers a true exercise of legal expertise. Scott wrote Canada
Today, Her National Interest and National Policy in 1938, Civil Liberties
and Canadian Federalism in 1959, and his collected papers were published in
1977 as Essays on the Constitution. “In 1930, influenced by views first
forwarded by H.A. Smith, Scott began to attack the referral of legislation of
the Judicial Committee of the Privy Council [ in England], a battle he
carried on throughout the decade.” 8 It was, of course, one of the many
battles Scott won. Whether accepted or rejected, Scott’s lively partisan views
made him a vital force in the legal education of several generations of
students at McGill. During the post-war Duplessis years, Scott gained
recognition as an outstanding defender of civil rights, particularly by arguing
successfully two notorious cases before the Supreme Court of Canada. 9
Maxwell Cohen began his career at the faculty in 1946, and he quickly
made his mark in the international law tradition of Corbett and Humphrey.
He served on a number of international commissions, was a member of the
Canadian delegation to the fourteenth General Assembly of the United
Nations in 1959-60, and was chairman of the Canadian section of the Joint
International Commission of Canada and the United States from 1974 until
1979. His writings have been prolific and include Some International Law
Problems of Interest to Canada and Canadian Lawyers20 in 1955, Some
Main Directions of International-Law: A Canadian Perspective2′ in 1963,
and Secrecy in Law- and Policy: The Canadian Experience and
International Relations in 1974.22 The international law tradition at McGill
has been so strong that R. St.J. Macdonald could say in 1974 that “the
amount of writing that has come out of the McGill Law Faculty in the field
of public international law far exceeds the production of other [ Canadian]
18 M. Shore, Overtures of an Era Being Born : F.R. Scott, Ideas of Cultural Nationalism
and Social Protest 1920-1929 (1977) (unpublished M.A. Thesis, University of British
Columbia), 73.
19 Switzman v. Elbling[ 1957 ] S.C.R. 285 and Roncarelliv. Duplessis[ 1959 ] S.C.R. 121.
F.R. Scott argued two other cases in the Supreme Court of Canada: Brodie v. The Queen
[ 1962] S.C.R. 681 (the case on Lady Chatterley’s Lover), and Oil, Chemical and Atomic
Workers International, Local 16-601 v. Imperial Oil Ltd [ 1963] S.C.R. 584.
20(1955) 33 Can. Bar Rev. 389.
2](1963) 1 Can. Yearbook of Int. Law 15.
22 E. Weisband & T. Franck, Secrecy and Foreign Policy (1974), 355.
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[Vol. 27
law faculties and reflects the interest of the institution in the field as a
whole.” 23
Cohen also wrote papers on legal education, including The Condition of
Legal Education in Canada24 in 1950, Objectives and Methods of Legal
Education25 in 1954, and Lawyers and Learning: The Professional and
Intellectual Traditions26 in 1961. It was in the 1950s and 1960s that Maxwell
Cohen made his greatest contribution to legal education at McGill. He was
involved in the founding of the Institute for Air and Space Law in 1951, and
he was the prime mover in the establishment of the Institute of Comparative
Law in 1966, and again in the re-establishment of the National Program in
1968.
These
three educational developments were, of course, mutually
supportive. The Institute of Air and Space Law was made meaningful by the
presence in Montreal of the headquarters of the International Civil Aviation
Organization (ICAO) and the International Air Transport Association
(IATA). Its purpose was concisely stated in its Calendar publication: “The
principal objective of the Institute is to provide its students with an overall
view and understanding of the legal processes regulating world-wide
aerospace activities.” The first director was John Cobb Cooper, a
distinguished American jurist, who had spent the greater part of his career as
legal adviser to IATA and as an airline executive. The presence in the faculty
of Cooper and his equally distinguished successors, including Eugene P6pin
of France, Sir Francis Vallat of Britain and Ivan Vlasic from Yale,
emphasized the supra-national character of the discipline. The founding of
the Institute of Comparative Law had to wait another fifteen years before the
necessary financial support could be assembled. That was achieved in 1966,
when public funds were becoming more available, and when foundation
interest was also secured.27 The institution made an excellent beginning by
attracting Dean H.R. Hahlo from South Africa and his presence introduced
a further cosmopolitan element into the faculty. Graduate students came in
considerable numbers to the two institutes –
both from across North
America and from overseas –
and the opportunities they afforded were
made all the more attractive because of opportunities for co-operation with
23 Macdonald, The Teaching of International Law in Canada (1974) 12 Can. Yearbook of
Int. Law 81.
24(1950) 28 Can. Bar Rev. 267.
25(1954) 32 Can. Bar Rev. 762.
26(1961) 7 McGill L.J. 181.
27 The venture was initially described as “The Institute of Foreign and Comparative Law”.
The institute’s General Information Announcement of January 1981 states at p. 4: “The
Institute is dedicated to the promotion of comparative graduate study and research in public
and private law, principally in civil and commercial law. Special attention is paid to
international business and comparative civil law.”
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LAW AT McGILL: PAST, PRESENT AND FUTURE
41
university departments such as Political Science, Classics, and the Institute
of Islamic Studies.
We have stressed this development from the time of Lee’s appointment
to the establishment of the two institutes and the re-establishment of the
National Program, because it offers clear evidence of the progressive
liberation of the faculty from the “trade-school” concept of legal education.
But to do this is to run the risk of distorting the picture unless we also
emphasize that the process took place as truly in the civil law courses as
elsewhere in the faculty. Even when the only task of the faculty had been to
train lawyers for practice at the Qu6bec Bar, the academic obligation to
study, expound and develop the Civil Code had been increasingly recognized
and very creditably discharged. It should be remembered that a particular
loyalty to the Code as a legal instrument dates back to the days of McGill’s
fourth principal and first chancellor, Charles Dewey Day, who was an
influential member of the three-man commission which re-ordered the Code
in 1866.28 The maturation of scholarship within the Civil Code tradition thus
long antedated the common law and international law development, as is
further shown, for example, by the publication of Gonzalve Doutre’s
primarily historical Le droit civil canadien in 1872, P. -B. Mignault’s Le droit
civil canadien in nine volumes, dated from 1895, and F.P. Walton’s The
Scope and Interpretation of the Civil Code of French Canada in 1907. The
new degree of professional commitment to the teaching of law introduced by
Walton and fostered by Lee, provided even greater stimulus for the tradition
of scholarship centering in the Civil Code to express itself more directly in the
curricula and the publications of the faculty. In the early and middle decades
of the century this tradition was worthily maintained by such civilians as
“l’in6galable” Eugene Lafleur, William de Marler, Louis Baudouin and
Arnold Wainwright. When a further revision of the Code was called for one
hundred years after the first codification, McGills Wainwright Professor of
Law P.-A. Crdpeau was named president of the Office of the Revision of the
Civil Code, and the faculty’s expertise in the Code was placed beyond all
doubt. John W. Durnford, John E.C. Brierley, and especially the late Yves
Caron, served with other colleagues on the revision committee, so that
McGill’s contribution was substantial.
It was this combination of strength in the Civil Code and in the areas of
international, constitutional and comparative law which enabled the faculty
to resurrect the idea of a “national program” in 1968.
This Program is an integrated program of studies in Canadian law in which students
pursuing either a civil law or common law degree share a wide range of’Canadian’ law
courses in areas such as Constitutional Law, Public International Law, Administrative
Law, Commercial Law, Criminal Law, and Labour Law. All civil law students take at
2 Brierley, Qudbec’s Civil Law Codification, Viewed and Reviewed (1968) 14 McGill L.J.
521.
McGILL LAW JOURNAL
[Vol. 27
least one basic common law course, such as Contracts, Torts or Property; all common
law students take a number of basic civil law courses. All students therefore receive a
basic training in the legal system in which they are earning their degree together with a
serious introduction to the other. Thus students may still obtain only a B.C.L. degree ;
alternatively they may study for only the LL.B. (common law) degree… But a further
year of study after the obtaining of either degree leads to the granting of the second
degree… . The Faculty believes that its National Program creates an important link
between Quebec and the rest of Canada. We are now training truly’national’ lawyers,
for which there is a real need in this country.29
The success of this program over the past twelve years has been aided by
the increased material and intellectual resources of the faculty. The growth of
the student body has also been a major factor. From approximately fifty
students in 1940, to one hundred and eight in 1950, to two hundred and thirty
in 1960, to two hundred and seventy in 1970 and to over five hundred in
1980, the increase has been steady and unfaltering.
II. Law at McGill Today
This then is something of the history of law at McGill which has
each of which
-produced a strong faculty complemented by two institutes –
has achieved an enviable national and international reputation.
The faculty is unusual in that it is teaching the civil law and the common
law in one integrated curriculum. This makes for diversity of subject, method
and language. Lectures in the civil law courses may be given in either English
or French, and this has been the practice for well over a century.30 Lecturers
are expected to receive questions in either language and to respond in the
language of the questioner, and students may submit essays or write
examinations in either language. Similarly, although there has been no
attenuation of the position that McGill’s is an English-language law school,
the student body is a healthy mix of those whose mother tongue is English
and those whose mother tongue is French. The breakdown by maternal
language is seventy-two per cent English, twentyper cent French, and eight
29 McGill Faculty of Law Announcement (1980-81), 3.
30 Over the years the amount of teaching given in French appears to have varied with
individual lecturers. The earliest reference to the subject in the Law Faculty Minutes appears
in December 1875:
A petition was read from a number of the French students setting forth that some of the
French professors give a resum& of their lectures and praying that the English professors
would take the same course with regards to translating into French. Upon this petition the
Faculty without laying down any rules gave expression to the opinion that the students
were to be presumed to understand both languages and that lectures ought not to be
repeated further than to explain questions asked in the language of the questioner and it
was resolved to recommend all the professors to adopt this course.
However, the regular language of instruction has been English. The only other Civil Code
jurisdictions which operate partly in English are South Africa, where the alternate language
is Afrikaans, and Sri Lanka, where the alternate language is Sinhalese. Both systems are of
Dutch origin.
1981]
LAW AT McGILL: PAST, PRESENT AND FUTURE
43
per cent those who are of some other linguistic origin. As St Exuprry said,
“Because I am different, I do not diminish you, I enrich you.” For McGill’s
Faculty of Law that is indeed a way of life.
This diversity shows itself in other ways. Before the days of the Parent
Commission on education in Quebec, which reported in 1963-66,31 a student
needed a B.A. to get into law school. Now only eightyper cent of the students
have a first degree – not always the traditional B.A. – but often a B.Eng.
or a B.Comm. Some students –
approximately six per cent of the total –
have a year or two of arts or science, and the rest –
approximately fifteen
per cent –
are admitted straight from the Coll6ges d’enseignement grn6ral
et professionnel (CEGEP). These last two categories of students reflect the
principle established by the Parent Commission that first degrees in all
disciplines should confer a professional qualification.
This raises an important educational issue, defined by two conflicting
points of view. On the one hand there is a desire to educate and train young
people as quickly and as technically as possible, and get them into productive
practice with minimum expense to the taxpayer. This pressure is accentuated
by current government policies –
and to some extent by current public
opinion – which believes that a quick and easy solution must exist for any
challenge. On the other hand there is a strongly held opinion that a
professionally-oriented legal education should be built upon a broadly
conceived cultural base. It presumes that lawyers need to understand our
culture and its history to be able to adapt easily to change in the legal system
throughout an entire practicing lifetime, and to be able to advise clients with
a judgment informed by an understanding of their personal and social
situations. There must be sufficient scope in a future lawyer’s formal
education, before his professional education begins, to enable him to
recognize that the frontiers between one discipline and another are not
boundaries, but simply interconnecting and overlapping points. All
education is one, and legal education is but one aspect of an indivisible
whole. These two views are in contention. Legal education in the British
tradition has been representative of the former attitude. Legal education in
the tradition of the United States has been characterized by the latter
opinion, and it is this view which we favour.
The ratio of undergraduate students to full-time teachers is now
approximately 17:1, or 20:1, when graduate students are included. This is not
nearly as low as we would like it to be. But it would be worse if the thirty
full-time teachers were not supported by more than twenty part-time
instructors. Their participation helps to root the teaching program ii the
31 Report of the Royal Commission of Inquiry on Education in Canada (1963-66), Parts I,
II and III [referred to as the Parent Report].
REVUE DE DROIT DE McGILL
[Vol. 27
lively experiences of actual practice, and to invigorate it with the insight of
Oliver Wendell Holmes that “the life of the law is not logic ; it is experience”.
When one turns to the Institutes of Air and Space Law and of
Comparative Law, diversity in unity is again the characteristic theme. The
graduate students now number approximately one hundred, and they thus
constitute by far the largest full-time graduate law school in Canada. They
come from four Canadian provinces and twenty-six other countries around
the world. The nature of the problems they study is even more wide-reaching
than their countries of origin, as the names of the two institutes indicate. It is
difficult to conceive of any legal subject which could not be rightly
subsumed in the study of one or the other. Together they exemplify the law
as a universal discipline, not concerned simply with the systematization of
the rules of local law, but with the critical comparative consideration of
different operative legal systems.
Professor Paul-Andr6 Crrpeau,
the Director of the Institute of
Comparative Law, recently presented the revision of the Quebec Civil Code
to the Minister of Justice. The work of the team which he led is now being
progressively introduced into the Quebec National Assembly, so that its
many provisions may receive consideration and legislative enactment. This is
the culmination of fourteen years of work by Professor Crrpeau as the
moving spirit in the first full revision of the Code in its one hundred and
fifteen year history. He and his colleagues are currently engaged in writing a
series of treatises which comment on and explain the provisions of the Code.
Professor Nicholas Matte, Director of the Institute of Air and Space Law,
is probably the most productive legal scholar in Canada today. In the last
year he has brought into the institute more than $500,000 in external grants,
and over the years of his directorship he has maintained a steady flow of
significant publications in air and space law.32
In concluding this historical sketch, we think it is fair to say that McGill
has produced and exemplified for all of Canada the academic lawyer. As the
oldest law school in this country, it was perhaps natural that McGill should
arrive at this concept first. The seminal influence of F.P. Walton and R.W.
Lee, combined with the distinguished careers of innovators such as Smith,
Corbett, Scott and Cohen, established a great tradition at McGill which is
still in evidence today, and is surely one of the strongest determinants of the
faculty’s future development.
We have seen that if the legal professoriate is to fulfill the tradition of
teaching and writing critically and imaginatively about the law, it must have
32professor Matte’s recent publications include Aerospace Law: From Scientific
Exploration to Commercial Utilization (1977), Space Policy and Programmes Today and
Tomorrow: The Vanishing Duopoles (1980) and Treatise on Air-Aeronautical Law, 3d ed.
(1980).
1981]
LAW AT McGILL: PAST, PRESENT AND FUTURE
45
the qualities of detachment, of confident constructive criticism, and of a
willingness to be slightly ahead of the times. It is not surprising that law
professors are often the subject of controversy because of their unwillingness
to accept the status quo. Just as we treasure the independence of the Bench
from political influences, so must we value the independence and the
detachment of a professoriate that is prepared to criticize and to improve our
laws and system of justice, if our society is to grow confidently and
humanely. A detached and constructively critical approach to the law is as
certain a guarantee of our liberties as a written charter of rights. In fact, in
some ways it is more certain, because it is rooted in customs and convictions
– not simply in legislative fiat. This has certainly been true of McGill’s Law
Faculty in the past. The same conviction must be a major guiding principle
for the days that lie ahead.
III. The McGill Law Faculty of the Future
In looking to the future of the Faculty of Law there is much we would
hope to improve. The library collection and its facilities need to be
augmented, so that this resource would not simply struggle to keep pace with
five or six other library collections in the country but rather would better
reflect in its books the traditions of breadth and diversity which have in the
past characterized its teaching and its institutes. Scholars would then not
have to go elsewhere quite so often for collections with which to do their
more adventurous work. The secretarial assistance to professors needs to be
increased so that their time might be more productively used in teaching and
research. In particular, the secretarial and administrative resources of the
institutes need to be augmented, so that they could pursue their work with
ease and not worry about needing to find external grants. The ratio of
teachers to students should be improved so that it would more closely
parallel those of the several better endowed law schools in the country. To
show that there is a consistency in these proposals, one may refer back to
H.A. Smith’s paper in 1921 to see that professors have been making similar
demands for generations. 33
Of course, there are some things we do not hope to change. We would
retain and perhaps increase the complement of part-time teachers. Indeed,
we may develop fellowships which would bring into the faculty for study-
periods of one month, three months, or even a year, members of the
practicing Bar or the Bench,
to pursue particular projects and stimulate
others by their presence.
Finally, we hope in the near future to be able to increase the interactive
role of the faculty with other parts of the university. Courses on areas of law
could be given in the Arts Faculty, as has been done at different times in the
33Supra, note 9, 31-2.
McGILL LAW JOURNAL
[Vol. 27
past. At the same time, the specialized interaction of the Law Faculty with
other professional faculties could be increased. Several examples already
exist: a cross-appointment with the Department of Humanities and Social
Studies in Medicine, and the resultant partnership in Medical Ethics and
Jurisprudence; another cross-appointment with the School of Urban
Planning; the current involvement of engineers and economists in the
Institute of Air and Space Law; and the joint Bachelor of Laws/ Master of
Business Administration degree program. And of course, we would
reciprocate by ensuring that teacher-scholars from related disciplines such as
economics, political science, history, psychiatry and psychology would also
be jointly appointed to the Faculty of Law.
Summation
As McGil’s Law Faculty charts its strategy for the future, we expect it to
be faithful to these perspectives of the past. Some of the following
observations would seem to provide the appropriate guide-posts. First, its
middle-size among Canadian law schools should be seen as a virtue to be
preserved. It encourages a preoccupation with quality and perspective and
fosters a steady emphasis on research and writing about the law. This is
based on the conviction that research and teaching inform one another, and
are indispensable to one another if each is to be lively.
Secondly, the existence of the two first-degree programs, the LL.B. and
B.C.L., reflects the fact that life is always a little harder at McGill because
one is not content to do the conventional. By presenting the two Canadian
legal traditions side by side –
traditions which mirror the two great
European legal systems –
and by insisting that they inform and refine one
another in fruitful co-existence, one begins to fulfill in law the rich destiny of
Canada.
Thirdly, the fact that the largest and most international law graduate-
program in the country exists within a faculty significantly smaller in size
than many of the other law schools in the country is a symbol of McGill’s
ability to do more with less.
This article commenced with a -reference
to the two founding
professional faculties in McGill University, the Faculty of Medicine and the
Faculty of Law. We can take legitimate pride, more than a century later, in
viewing their present stature. One can be confident that as these two
professional faculties have helped to lead the university in the pursuit of
excellence in the past, so they will continue to do so in the decades to come.
