Madly Off in One Direction:
McGills New Integrated, Polyjural,
Transsystemic Law Programme
Harry Arthurs*
In 1994, the McGill Faculty of Law organized a
two-day faculty retreat, seeking to lay the foundations
of a new curriculum. This desire was in part a response
to the contradictions inherent to the faculty, but also
stemmed from a deep-seated preoccupation with
polyjurality, non-state normativity, transnational legal
systems, and legal theorya preoccupation that dates
back to its origins, over 150 years ago.
The author, while praising McGills efforts at
reinventing itself, laments a certain reserve toward
interdisciplinarity. He conjectures that at least some
understand
and
transsystemic law as a project that is largely concerned
with interactions amongst recognized legal systems, as
opposed to a way of exploring the parallel normative
universe that exists alongside such systems. Even
though challenges of recovery, contextualization, and
fundamental
the way of
transsystemic
that
McGills Faculty of Law, with clearly defined
objectives and a curriculum designed to meet these
objectives, provides a laudable alternative.
stand
the author believes
rethinking
teaching,
the
teaching of polyjurality
in
En 1994, la Facult de droit de McGill organisait
une retraite de deux jours pour les membres du corps
professoral, cherchant jeter les bases dun nouveau
cursus. Ce dsir tait la fois une rponse aux
contradictions inhrentes la facult, mais tait
aussi issu dune proccupation profonde pour la
polyjuralit, la normativit non tatique, les systmes
juridiques transnationaux et la thorie du droit un
souci datant de ses origines, il y a plus de 150 ans.
Lauteur, tout en saluant les efforts de McGill se
rinventer, dnote une certaine
timidit envers
linterdisciplinarit. Il dplore que certains conoivent
lenseignement de
la polyjuralit et du droit
transsystmique comme un projet qui se proccupe
avant tout des interactions entre les systmes juridiques
reconnus, plutt que comme une manire dexplorer
l’univers normatif parallle qui existe au ct de ces
systmes. Bien que des dfis de rcupration, de mise
en contexte et de reconceptualisation fondamentale
fassent obstacle lenseignement transsystmique,
lauteur est davis que la Facult de droit de McGill,
avec des objectifs clairement dfinis et un cursus conu
pour atteindre ces objectifs, propose une alternative
digne de louanges.
* Professor of Law and Political Science and President Emeritus, York University. Professor Adelle
Blackett kindly provided comments on an earlier draft of this paper, but should not be blamed for my
editorial idiosyncrasies, errors, or omissions.
Harry Arthurs 2005
To be cited as: (2005) 50 McGill L.J. 707
Mode de rfrence : (2005) 50 R.D. McGill 707
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 50
708
Introduction
I. The Process of Curriculum Review
II. Necessitys Child: McGill in Quebec, Canada, the
World, and History
III. Interdisciplinarity: The Love that Dare Notor
Need Not?Speak Its Name
Conclusion
709
711
712
715
719
2005]
H. ARTHURS MADLY OFF IN ONE DIRECTION
709
Introduction
In 1998, after several years of intense deliberation, extensive consultation,
vigorous debate, and careful preparation, the McGill Faculty of Law launched one of
the most unusual curriculum experiments in the annals of legal education. The
underlying assumptions, practical details, and hoped-for results of that experiment are
set out in the law school calendar,1 have been described and dissected in publications
by several faculty members,2 and of course are the focus of this special issue of the
McGill Law Journal. In summary, McGills former National Programme enabled
students to take a three-year degree in either civil or common law and then at their
option to acquire the other degree after a further year of study. The new, integrated
McGill Programme exposes all students to courses that integrate civil and common
law, that encompass both public and private law themes, that consciously link
domestic and international law, that offer theoretical perspectives on laws social,
cultural and political context, that deploy a variety of pedagogic strategies and
learning experiences, andseemingly as an afterthoughtthat do all of this in
Canadas two official languages. It almost seems anti-climactic to note that students
normally spend a maximum of four years3 pursuing this exhilarating (perhaps
exhausting) new curriculum and, at the end, receive (merely) two degrees, a B.C.L.
and an LL.B.
Stephen Leacock, a McGill polymath of an earlier generation, famously
described how one of his fictional characters, Lord Ronald, flung himself upon his
horse and rode madly off in all directions.4 His latter-day successors in the Faculty of
Law have done him one better: they have flung their diverse and disputatious selves,5
their intellectual baggage and political proclivities, and their engaged and ambitious
students on this amazing curricular steed and ridden madly off in one direction. That
one directionas described in official documents and scholarly commentariesis
toward integrated, polyjural, or transsystemic legal education.
Galloping off in one direction is no mean feat for any academic unitand near
astonishing when it occurs in a law faculty. To ensure the appearance of coherence
and unidirectionality, McGill has made a number of wise choices: it has given its new
1 See McGill University, Faculty of Law, online:
2 See e.g. Adelle Blackett, Globalization and Its Ambiguities: Implications for Law School
Currricular Reform (1998) 37 Colum. J. Transnatl L. 57; Julie Bdard, Transsystemic Teaching of
Law at McGill: Radical Changes, Old and New Hats (2001) 27 Queens L.J. 237; Yves-Marie
Morissette, McGills Integrated Civil and Common Law Programme (2002) 52 J. Legal Educ. 12;
Nicholas Kasirer, Bijuralism in Laws Empire and in Laws Cosmos (2002) 52 J. Legal Educ. 29
[Kasirer, Bijuralism]; H. Patrick Glenn, Mixing it Up (2003) 78 Tul. L. Rev. 79; Nicholas Kasirer,
Legal Education as Mtissage (2003) 78 Tul. L. Rev. 481.
3 Most students earn the credits required for graduation in three or three-and-a-half years.
4 Stephen Leacock, Gertrude the Governess: or Simple Seventeen in Nonsense Novels (New
York: Dodd, Mead & Company, 1948) 71 at 73.
5 Roderick A. Macdonald, Office Politics (1990) 40 U.T.L.J. 419.
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programme a generic formal namethe McGill Programme, unencumbered by
descriptors such as transsystemic, integrated, or polyjural;
it has
conceptualized its curriculum at a very high level of abstractiona way of being
alive, according to one faculty member;6 it has embraced intellectual heterodoxy as
its orthodoxy; and it has accepted that while encounters with mixit in individual
courses is preferable, there is room for system-specific courses so long as they form
part of an overall student experience that is polyjural. But McGill has gone well
beyond appearances. It has taken practical steps to make good on the promise of the
new programme: many courses and seminars are offered with appropriate
transsystemic labels, descriptions and syllabi; they are taught by professorssome
recruited for the purposewhose scholarly writings attest to their commitment to the
transsystemic ideal; and several institutional supports have been put in place to ensure
that transsystemic or polyjural legal education remains an evolving concept rather
than a shibboleth or slogan.7
How, then, does the new McGill Programme operate in practice? This critical
question is difficult to answer for both evidentiary and conceptual reasons.
As to evidence, I have seen no documentation that suggests that McGill is
tracking the actual experience of students, faculty members, and relevant others with
its new curriculum, assessing professorial performance and student learning
outcomes, evaluating whether the shift from sequential bijurality (the old National
Programme) to integrated polyjurality (the new McGill Programme) has altered
students conceptions of law, or calibrating the law schools ability to attract good
students and place its graduates in appropriate jobs. While insiders no doubt have
their own informed opinions on such matters, bolstered by anecdotal evidence, it is
difficult for an outsider to say whether the programme is a success or, indeed, whether
or to what extent it actually exists.
Judgments about the operation of the programme run up against a fundamental
conceptual problem as well. The architects of the McGill Programme approached
curriculum reform as a complex, interactive and evolutionary process, best described
as one of adaptive learning.8 Consequently, proponents, critics, and reviewers of the
6 Roderick A. Macdonald, quoted in Kasirer, Bijuralism, supra note 2 at 39, n. 23.
7 These include a dedicated online faculty publication, The Transsytemic Bulletin, which is designed
to assist implementation of [the new programme] by providing McGill professors, lecturers and
students with a selective bibliography signaling some recent scholarly articles and books of interest
for the transsystemic teaching and study of law. It encompasses not only … comparative and
transnational analysis, but also … approaches that are theoretical, interdisciplinary, critical,
methodological and pedagogical. While featured topics may deal with any course offered within the
fold of the new programme, special emphasis is given to texts pertinent to the teaching of mandatory
courses. McGill University, Faculty of Law, Publication, online:
8 Stephen Toope, The Future of McGills Faculty of LawA Statement of Challenges and
Aspirations (September 1995) at 1, citing Henry Mintzberg, The Rise and Fall of Strategic Planning:
H. ARTHURS MADLY OFF IN ONE DIRECTION
2005]
new programme must ask not simply what was recommended and what was
implemented? but has the programme continued to evolve? and have the various
constituencies of the law school continued to adapt?
711
In other words, the standard of judgment the programme has defined for itself is
not how it functions at any given moment, but rather how it evolves over time. For
the new curriculum to become a living reality in McGills classrooms, common
rooms, and faculty offices, the professorate must radically revise many pedagogic
practicesand then revise again; students must consciously opt to study under the
new programme, and remain committed to its values even as those values manifest
themselves in a changing array of courses, pedagogies, and learning environments;
law faculty and university administrators must keep finding new funds and new
people to implement ita Sisyphean task; law firms and professional bodies must
support it, or at least accept it, long before its premises are understood or its promises
realized; and the rest of the legal academy must acknowledge the validity and
importance of what McGill has undertaken even while other law faculties are
redefining legal education quite differently through their own evolutionary or radical
reforms.
I. The Process of Curriculum Review
McGills characterization of curriculum review as an evolutionary project must
be considered in light of Oscar Wildes aphorism that socialism would be wonderful,
except that it involves too many committee meetings. If the design and
implementation of the new curriculum did not involve too many meetings, it certainly
required that the dean, members of faculty, and others devote a good deal of time to
the exercise.
During 1994-95, the law faculty curriculum committee conducted extensive
consultations, beginning with a two-day faculty retreat. This retreat was designed to
avoid the incantation of clichs or the drafting of laundry lists of goals, values, and
requirementsrituals that characterize so many such exercises. Instead, the faculty
(and other groups consulted subsequently) were asked to respond to a series of
questions loosely structured to allow creative thinking to take placequestions
about the law facultys relationship with the profession and the university, about the
social and political context within which it is located, about the optimal and actual
composition of its student body, about McGills special educational niche, and
about the distinctive intellectual ethos of the faculty.9 Out of these discussions
which ultimately expanded to include students, judges and practitioners, non-
academic staff, and colleagues in other law schools and adjacent academic
Reconceiving Roles for Planning, Plans, Planners (New York: Free Press, 1994) [Toope, Statement of
Challenges and Aspirations].
9 These questions were: Department of Law, Faculty of Law, School of Law?; McGill in
Quebec; Diversity; A McGill Valedictorian; and Polyjurality. See Toope, Statement of
Challenges and Aspirations, ibid. at 2.
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disciplinesemerged lignes directrices for the evolution of the faculty: a statement
of challenges and aspirations … not a strategic plan …; not the draughtsmans
drawing; but the architects … conceptual drawing.10 Then, gradually, the law faculty
administration and committees moved to the implementation phase, which involved
issues of detailed curriculum design,11 budgeting, faculty retooling and recruitment,
advocacy of the new curriculum in professional and academic circles, and marketing
to prospective students. Subject to Oscar Wildes caveat, then, McGills curriculum
reform process was admirably thorough and, in that respect, stands as a model for
other law schools.
However, process is not enough. Genuine curriculum reform must ultimately be
driven by the power of ideas. One has the sense that McGills Faculty of Law is
particularly fortunate in having a number of able and imaginative scholars who were
not only prepared to participate in the project of curriculum reform, but willing to
view that project as an extension of their individual and collective intellectual
agendas. But why was McGill so fortunate? Perhaps because of its peculiar history
and ever-precarious present.
II. Necessitys Child: McGill in Quebec, Canada, the World, and
History
McGills Faculty of Law lives on an ongoing basis with a series of irreconcilable
contradictions. It is a predominantly anglophone institution serving a declining
anglophone population in an increasingly assertive francophone province. It has close
affinities with legal education in common law North America, but is located in a
jurisdiction one of whose defining characteristics is supposedly its civil law system. It
has been associated historically with the economic and legal elite of Montreal in an
era when populism animates much of higher education policy. And it aspires to
provide a window through which Quebec and the rest of Canada can view each
others legal cultures; but it is a window at which few faces appear, and legal culture
in general is being reshaped by a quite different array of powerful influences
universal human rights discourse, globalization of the mind and of the economy,
changing conceptions of the states role and character, and post-modernity, to name a
few.
One might ask whether the new McGill Programme, like its predecessor the
National Programme, was conceived as a necessary response to these contradictions?
This would explain the programmes focus on bi- or polyjurality, its insistence that
students be able to function in both official languages, its recruitment of a high
10 Ibid.
11 See Final Report of the Ad Hoc Curriculum Review Committee (11 April 1996) and Report of the
Ad Hoc Curriculum Implementation Committee (15 March 1997).
H. ARTHURS MADLY OFF IN ONE DIRECTION
2005]
proportion of out-of-province students,12 its emphasis on despatching McGill
graduates around the world, its announced commitment to social justice and diversity,
its prioritizing of international and comparative programmes of teaching, graduate
studies, and research. Indeed, there is confirming evidence in the travaux
prparatoires surrounding the creation of the McGill Programme that these were
important considerations.13
713
The McGill Programme is not, however, simply a necessary or expedient
response to a threatening environment. Rather, as Rod Macdonald persuasively
argues, the new programme was shaped by 150 years of intellectual development that
were characterized by a recurring preoccupation, in differing ways, with polyjurality
and non-state normativity, with transnational legal systems, and with legal theory.14
Countervailing and localizing influencesat times quite stronghave included the
professional claims of Quebecs bar and notariat, as well as formalist, functionalist
(and occasionally instrumentalist and anti-intellectual) tendencies within the faculty.
Nonetheless, what distinguishes todays McGill Programme from that of other North
American law schools is, indeed, a contemporary manifestation of themes which
began to emerge at McGill during the mid-nineteenth century. The necessities that
brought forth the new programme were, therefore, not simply political or economic;
they were also intellectual and institutional.
The central role of intellectual imperatives in shaping the McGill Programme
raises a further question, however. Legal scholarship and education have been
changing in many ways both within and beyond Canadas borders. To name but a
few: law faculties are becoming both more like other university faculties and less like
each other; legal scholarship is more prolific, intellectually ambitious and, to a lesser
extent, methodologically diverse; admission to law faculties is more competitive and
issues of diversity and equity in student recruitment have become inescapable;
curricula have become less compulsory and more diffuse; new pedagogies have been
12 While out-of-province students pay higher fees, these fees are still considerably lower than fees at
many Canadian law schools. Ontario law students, for example, would pay between two and three
times as much if attending law school in their home province. In any event, the law faculty does not
benefit directly from the additional fee revenue that it generates by attracting a large out-of-province
contingent.
13 For example, Dean Toope references strategic positioning vis–vis the future of Quebec, Canada
and international society (supra note 8 at 3); The Ad Hoc Curriculum Implementation Committee
highlights the fact that international economic integration has promoted the harmonization and
overlap of legal systems, reminds the law school community that the financial situation of the
University means that the structures of our programme must be carefully assessed, declares that
McGill must pay attention to our location in Montreal, andno doubt influenced by the
closeness of the secession referendum of the previous yearrefers poignantly to the current political
uncertainty which demands that we pay attention to our role in the ever-shifting relations of
Montreal, Quebec, Canada and the international societies (Report of the Ad Hoc Curriculum
Implementation Committee, supra note 11 at 1).
14 Roderick A. Macdonald, The National Law Programme at McGill: Origins, Establishment,
Prospects (1990) 13 Dal. L.J. 211 [Macdonald, National Law Programme].
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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introduced; law school graduates appear to be less committed than they used to be to
entering the practice of law but, if they do, more willing to practice abroad;
technology has become indispensable for research and is widely used for teaching;
and, despite sharply rising student fees, law school budgets have become (with a few
exceptions) less and less adequate to the task of responding to these new challenges.
[Vol. 50
Against this background, it is somewhat surprising that McGills formidable
effort to redefine itself does not seem to have been explicitly linked to broader
developments in legal education and scholarship. Several committee reports note in
passing that other faculties of law are engaged in similar exercises; and passages in
those documents suggests that their authors are generally familiar with contemporary
trends in legal education. However, in general, the travaux prparatoires neither
reference recent literature on the subject nor suggest that any systematic effort was
made to investigate what is actually happening at other law schools in Canada or
around the world. Nor, somewhat surprisingly, do these documents offer much
analysis of the new domestic and international political economy in which McGill
graduates are likely to practice, and McGill scholars to preach. Nor, alas, do they
appear to draw on social-scientific studies of what lawyers do, how they learn to do it,
and what might make them do it and learn it differently and more effectively.
In short, the sophisticated intellectual debate around jurality that produced the
McGill Programme has a somewhat introspective, even self-referential, character. In
this, it resembles not only most discussions of law school curriculum reform, but
much legal scholarship.15 As the author of several unsuccessful attempts to approach
curriculum reform from a different perspective,16 I am well aware of the difficulties
which may have led McGill to choose jurality as its unifying theme. Nonetheless, by
choosing that route, McGill may have missed an opportunity to gallop madly off in
more directions than the one it ultimately committed to.
15 See Consultative Group on Research and Education in Law, Law and Learning (Ottawa: Social
Sciences and Humanities Research Council of Canada, 1983) [Arthurs Report]; Theresa Shanahan,
Legal Scholarship: An Analysis of Law Professors Research Activities in Ontarios English-Speaking
Common Law Schools (Ph.D. Thesis, University of Toronto, 2002) [unpublished]. See generally the
dossier on The Arthurs Report on Law and Learning 1983-2003 in (2003) 18:1 C.J.L.S. and
especially Ren Ct, Dossier on the Arthurs Report on Law and Learning: A Reaction from the
University of Quebec in Montreal (UQAM) (2003) 18:2 C.J.L.S. 115.
16 As principal author of Law and Learning, ibid., I can affirm that it made little if any impression
on Canadian law school curricula. My more recent, but equally unavailing, efforts include: H.W.
Arthurs, The Political Economy of Canadian Legal Education (1998) 25 J.L. & Socy 14; H.
Arthurs, Why Canadian Law Schools Do Not Teach Legal Ethics in Kim Economides, ed., Ethical
Challenges to Legal Education and Conduct (Oxford: Hart Publishing, 1998) 105; Harry W. Arthurs,
Poor Canadian Legal Education: So Near to Wall Street, So Far from God (2001) 38 Osgoode Hall
L.J. 381; H. Arthurs, The World Turned Upside Down: Are Changes in Political Economy and Legal
Practice Transforming Legal Education and Scholarship, or Vice Versa? (2001) 8 Intl J. Legal
Profession 11; Harry W. Arthurs, The State Were In: Legal Education in Canadas New Political
Economy (2001) 20 Windsor Y.B. Access Just. 35.
2005]
III. Interdisciplinarity: The Love that Dare Notor Need Not?
H. ARTHURS MADLY OFF IN ONE DIRECTION
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Speak Its Name
Very few passages in the travaux prparatoires, which framed up the McGill
Programme, speak to the question of interdisciplinarity. Only a few McGill law
professors appear to hold graduate degrees in disciplines other than law, though a
larger number are cross-appointed to other faculties or to interdisciplinary research
institutes. Also, very few courses advertised in the new curriculum appear to be
organized on explicitly interdisciplinary lines. This does not necessarily signal
disrespect by the authors of the McGill Programme for the intellectual and
professional value of engagement with economics or politics, philosophy or
sociology. Nor does it ignore the fact that several members of the faculty are not only
at home in the vernacular of the social sciences, but are in fact leading contributors to
socio-legal studies in Canada and internationally. Nor does it suggest that McGills
courses on the legal dimensions of family relations, criminal law, or market regulation
ignore the need to understand the social and economic context of legal rules and
institutions. Indeed, the new programme provides students with two interdisciplinary
options: a minor in a related field of study, comprising about fifteen per cent of
their overall course load, and a major involving a trans-disciplinary approach to
one of four areas of legal endeavour culminating in the writing of a paper
demonstrating the consolidation of learning in law and non-law courses.17
That said, in the discourse surrounding the design and implementation of the
McGill Programme, interdisciplinarity is the love thatunlike juralitydared not
speak its name. However, the few mentions of the topic are quite revealing. In Dean
Toopes Statement of Challenges and Aspirations, he observes:
Faculty members might also explore ways of relating more effectively as
teachers with colleagues and intellectual traditions in sister faculties at McGill.
Although the rhetoric of interdisciplinarity has been employed widely over
the last few years, few concrete connections have been established.18
He proposes that in certain courses, it may well be that colleagues in other
disciplines could serve as resource persons, that the law faculty might selectively
cross-list courses in other faculties so that they could be taken by law students, and
that ad hoc arrangements might be made for students to take courses in political
science or philosophy.19 These modest proposals were in fact overtaken by the much
more ambitious minor and major options outlined above. Interdisciplinarity
surfaces again briefly in a discussion of strategies that might provide financial support
for several faculty members … now engaged in interdisciplinary research, empirical
17 See the booklet produced by McGill in 2003 and available online:
non-law courses that students may take within the B.C.L./LL.B. from twelve credits to six.
18 Toope, Statement of Challenges and Aspirations, supra note 8 at p. 7.
19 Ibid. at 9.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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research and archival research.20 But in general, the intellectual predicate of this
crucial documentwhich defines the law schools vocation and lays down lignes
directrices to guide subsequent decision makingis very much a legal, a jural,
predicate. Dean Toopes charge to the faculty a year laterThe Task Ahead
identifies interdisciplinarity neither as one of the influences that have provided the
impetus to curriculum reform nor as one of the key themes that will inform
further developments at McGill.21
[Vol. 50
The Final Report of the Ad Hoc Curriculum Review Committee likewise does not
identify knowledge of social sciences or humanities as one of the elements that
grounds the excellence of the Faculty, or as one of the aspects of knowledge with
which all students should arguably graduate.22 However, it does propose that by the
end of second year, all students should possess, as one of ten building blocks, a
basic appreciation of the interactions of law and social context.23 That appreciation,
apparently, is to be gained by reinforcing the Foundations course, which as its name
suggests … introduces students to the foundations of law in sociology, anthropology
and history.24 However, as Dean Toope noted, the subject focus of other first-year
courses has left Foundations as the odd man out in the curriculum.25 The McGill
Programme in fact does attempt to bring Foundations back in: instead of three hours
credit it now receives four (compared to five or six credits for substantive courses);
and it is taught in small sections by several members of faculty with strong
interdisciplinary credentials. Thus, in formal terms at least, interdisciplinarity in the
first year of the McGill Programme remains pretty much sequestered in the
Foundations coursea fate which it suffers in most law schools (except those that
have ignored it altogether). While students may pursue minor or major options
after first year, there is some risk that their almost total initial immersion in jurality
will set the mould and make them disinclined to pursue interdisciplinary thereafter.
This diffidence towards interdisciplinarity at McGill (and other law schools) is
somewhat surprising. Proponents of interdisciplinarity sometimes argue that the
social sciences and humanities are useful, that they can help us to understand the
psychology of witnesses, the operation of complex governance systems, or the origins
of the ideas embodied in the Charter.26 But these arguments stoop to conquer. The
better argument is that interdisciplinary perspectives help to rescue legal education
and research from the tyranny of conventional assumptions, from the banality of
legal-professional discourse, from the embarrassment of solipsistic or circular
20 Ibid.
21 Memorandum from Stephen J. Toope to the Ad Hoc Curriculum Review Committee, entitled
The Task Ahead (25 March 1996).
22 Supra note 11 at 3.
23 Ibid.
24 Ibid. at 10.
25 Toope, Statement of Challenges and Aspirations, supra note 8 at 6.
26 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act,1982, being Schedule B
to the Canada Act 1982 (U.K.), 1982, c. 11.
H. ARTHURS MADLY OFF IN ONE DIRECTION
2005]
reasoning. And these, it would seem, are precisely the reasons why McGill has
fastened on polyjurality as the organizing principle of its curriculum and as a major
preoccupation of its scholars.
717
As Dean Kasirer argues in a thoughtful article, there is a temptation to use
instrumental conceptions of polyjurality or transsystemic teaching to persuade law
firms that McGill graduates are useful recruits or to persuade Quebec that legal
education at McGill provides it with a much-needed open door on the world. Such
arguments, he says, [trivialize] the study of law as an intellectual endeavor in that
[they detach] the discipline from its more natural place in the university among the
social sciences and humanities.27
For Dean Kasirer, the bold new McGill experiment in teaching transsystemic law
is important not because it equips lawyers to function in what Yves-Marie Morissette
ironically calls Transsystemia,28 but because it gives primacy to questions about
what explains law as a social phenomenon, what is the nature of legal knowledge,
what does it mean to think like a lawyer, what it means to think like a citizen alive to
laws symbolic and persuasive attributes.29
These are questions that cannot be answeredperhaps cannot even be asked
from within laws empire (Kasirers phrase). That is why many legal scholars, at
McGill and elsewhere, choose to situate themselves on the periphery of that empire;
that is why they use insights from other disciplines to challenge (but sometimes
reinforce) legal-imperial verities and vanities; that is why they provoke (and
sometimes alienate) students who wish to concentrate on the law. But for some
reason, there is little acknowledgement of these practices in the discourse of
curriculum reform at McGill in the mid 1990s. Happily, as the faculty moved from
thinking about curriculum reform to actually doing it, interdisciplinarity did feature
more prominently.
Of course it is important not to fetishize the social sciences and humanities,
which have their own empires, their own verities, their own vanities. But it is odd that
a theme that permeates so much of the literature on legal thought and legal education
should have largely escaped explicit mention by McGills daring curriculum
reformers, who were surely sensitive to its possibilities.
interdisciplinarity
There are several possible explanations, none of them entirely persuasive.
Perhaps
thought and pedagogy has become so
commonplace that to make explicit reference to it would brand one as a latter-day
Bourgeois Gentilhomme suddenly discovering that he has been speaking prose all
along. Perhaps in McGills unique academic culture, dissolving the historic divisions
between civil and common law is a transgressive act of such magnitude that there was
in
legal
27 Kasirer, Bijuralism, supra note 2 at 31.
28 Morissette, supra note 2 at 23.
29 Kasirer, Bijuralism, supra note 2 at 31.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
718
no appetite for an assault on other taboos.30 Perhaps any project designed to describe
the new vision of the McGill law faculty to its relevant otherspresent and
prospective students and faculty members, the practising profession, the university
administration, public and private funding agencies, the legal academy in general
properly focused on what it does best and what they would most easily understand:
thinking about jurality.
[Vol. 50
jurality, rather
the explanation for McGills choice of
Whatever
than
interdisciplinarity, as the engine of curriculum reform, the choice seems somewhat
odd to me. Jurality is a neologism. The Oxford Engish Dictionary does not
recognize the word though it defines its close relation the adjective juralas
relating to law or its administration; legal; juristic.31 In fact, jural shares the Latin
root jus with scores of adjacent entries in OED online, but looming up smack dab in
the middle of all these law-words is Jurassic. In the popular imagination, OED
online tells us, the Jurassic is the period of great marine reptiles and flying
dragons.32 Most people, many lawyers, even some McGill academics seem to view
jurality in rather the same way: lawthey imaginehas existed since time
immemorial; it is the product of ineluctable natural processes; and its manifestations
are awe-inspiring. Alas, it is the duty of legal academics, like geologists and
archaeologists,
to excavate mythologies, correct misconceptions, offer new
hypotheses, test them against the evidence, and revise them if they do not accurately
describe what we understand to be reality. My questions, then, are these: Can we
understand law using a cosmology, an epistemology, a deontology that is exclusively
or quintessentially jural? And since most of us know that is impossible, why not say
so?
McGills failure to say so is especially puzzling because, as noted, some
proponents argue in favour of a transsystemic or polyjural view of law precisely
because it problematizes the assumptions of laws empire, and raises questions
about law as fundamental as those raised by, say, economics or sociology, history, or
philosophy.
Legal pluralism might help to bridge the gap between interdisciplinarity and
jurality. For the legal pluralists on the faculty,33 the jural and the systemic may
refer not simply to common or civil or international law systems established by states,
but as well to non-state normative regimes that are indigenous to all sites of social
interactionto workplaces,
public
bureaucracies, and religious communities. But if this were the case, the curriculum
neighbourhoods,
business
networks,
30 But as Roderick A. Macdonald shows, the struggle is more complicated than that. See
Macdonald, National Law Programme, supra note 14.
31 Oxford English Dictionary, 2d ed., s.v. jural, online: OED
32 Ibid., citing to William J. Arkell, Jurassic Geology of the World (New York: Hafner, 1956) rather
than to Stephen Spielbergs famous movie, Jurassic Park (1993).
33 Professors Blackett, Belley, Jutras, Kasirer, Macdonald, Manderson, and Van Praagh come
immediately to mind; there may be others.
H. ARTHURS MADLY OFF IN ONE DIRECTION
2005]
would be organized not around jural conceptsthe Procrustean bed into which first
year students are still firmly pressedbut rather around the varieties of social
relationships that give rise to those concepts. Moreover, if these normative regimes
were given curricular weight commensurate with their influence on social and legal
behaviour and with the practical, intellectual, and ethical questions they raise, the
criminal law syllabus would deal extensively with the law of the courthouse, labour
law with the law of the shop, family law with the law of the relationship, and so
on.
719
However, this is easier said than done. In the first place, like the indigenous legal
traditions of First Nations, these normative regimes are often unwritten, sometimes
non-verbal and sometimes invisible, imbricated in and indistinguishable from the
very activity they purport to regulate. Thus, before one can teach this kind of law, one
must first recover it; but recovery is arduous, because these regimes are evanescent.
Second, even when easily recoverablea collective agreement, a manual of standard
procedures for departmental officials, a compendium of religious practices, such
bodies of law are only comprehensible in context; but context is hard to convey.
Third, judges, lawyers, and many legal academics tend to be dismissive of these
normative regimes, regarding them as less legitimate and powerful than real law; but
to demonstrate the contrary requires a frontal assault on the foundational assumptions
of legal culture, careers, and curricula. Finally, the absence of an explicit commitment
to interdisciplinarity in the formal manifesto of the McGill Programme makes each of
these challenges of recovery, contextualization, and fundamental rethinking more
difficult.
For reasons indicated above, I lack evidence and can do no more than conjecture.
However, it would not entirely surprise me if some McGill professors and perhaps
most students understood the teaching of polyjurality and transsystemic law as a
syncretic project, largely concerned with interactions amongst recognized systems of
civil and common law, public and private law, international and domestic law. As a
corollary, I suspect that relatively few accept the more radical legal pluralist view that
the new curriculum is a way to cultivate an agnostic view of the claims of jurality
itself and to explore the parallel normative universe that exists alongside law as it is
conventionally understood by lawyers. If I am right, in this important respect, the new
curriculum indeed does ride madly off in just one direction.
Conclusion
When it launched its innovative National Programme in the late 1960s, McGill
was one of several Canadian law schools to attempt dramatic curriculum reforms.
Osgoode, the largest common law school, had optionalized its curriculum, appointed
its first full-time social scientist, introduced clinical education and consciously
promoted a social justice agenda; Calgary and Victoria, small new schools, were
committed to significant experiments in pedagogy and course offerings; UQAM,
McGills near neighbour, had launched a controversial programme, built on a clearly
articulated social and political ideology, which was designed to attract a mixed
clientele of prospective professionals and activists.
[Vol. 50
this unstructured curriculum offered students
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
720
Within a decade, however, the impulse to radically restructure the curriculum had
seemingly run its course. Instead, as Law and Learning observed in 1983, Canadian
law schools had largely embraced humane professionalism as the organizing
principle of legal education, and had implemented that principle via an eclectic,
optional curriculum whose elements were arranged in no fixed proportion or
sequence.34 In principle,
the
opportunity to create their own blend of intellectual and professional subjects,
reflecting their individual needs and interests; in practice, however, most students
chose to take courses and seminars which they perceived (often wrongly) to be
professionally negotiable; by contrast, theoretical and interdisciplinary studies
attracted few enrolments and, in the words of Law and Learning, the scholarly
discipline of law had languished.35 As a result, the report concluded, Canadian legal
education was neither as effectively professional nor as broad and humane as it
aspires to be.36
The remedy, according to Law and Learning, was that legal education must
define its objectives explicitly, … among those objectives, the promotion of a
scholarly discipline of law must figure prominently, … a variety of objectives requires
a plurality of educational strategies, and … appropriate resources must be made
available to implement those strategies.37 Consequently, law faculties should
substitute for their present eclectic curriculums a series of clearly defined alternatives
based on intellectual insights, social goals, pedagogic approaches, or professional
specialties.38
This recommendation attracted little overt support at the time, and little since.
However, over the intervening years, a number of law schools have indeed defined
their objectives more explicitly, restructured their curricula to accomplish those
objectives, to take advantage of specific intellectual strengths or to serve identifiable
student constituencies. McGills Faculty of Law has gone farther down this road than
most and now offers a more clearly defined alternative than any other Canadian law
school. In doing so it has adhered to its own intellectual traditions, and carried
forward the logic of its own National Programme, both of which long antedated Law
and Learning. Obviously, then, as a principal author of Law and Learning, I can
claim no credit whatsoever. But I canand doapplaud.
34 Arthurs Report, supra note 15 at 47.
35 Ibid. at 133-34.
36 Ibid. at 153.
37 Ibid. at 154-55.
38 Ibid. at 155.
