Canada’s Legal Pasts: Looking Forward, Looking Back

Abstract

This was my first introduction to Canadian legal history, a field that I came to see as central to my own interests, learning, and understanding as a law student. The pieces in this collection are a marker of what students in multiple fields can learn through attention to the legal histories of Canada's past.Both at the conference and in reading the volume, I have been most taken with what one might call the "mythology building." As a young nation, we are still searching for the moments and individuals that define our collective Canadian "mythos." Where will Canadian legal historians find their totemic figures-their heroes and villains? Should we reject the totemic figures of previous generations-the John Beverley Robinsons and William Osgoodes-in favour of unknown figures? Could these be the mounted police recruits brought to life by Shelley Gavigan? The enterprising legal professionals examined by Alexandra Havrylyshyn, who challenges the myth that there were no lawyers in New France? Or perhaps, like me, one may be struck by the detail and charm of "The Last Voyage of the Frederick Gerring, Jr.," by Christopher Shorey, an exploration of a possible Canadian Pierson v. Post analogue with enough narrative finesse to tap into the latent maritime nostalgia that I did not suspect I had. If I were unafraid of writing in hackneyed grade-school clichés, I might say f o r e w o r dNick Austinx research involving the law. In his preface, Knafla described how the papers illustrated the potential for seeing our society through an appreciation of legal problems in their social, cultural, and economic settings. 2 What these first papers indicate is the intertwining of legal and social history as a route forward for understanding not just crime, but all areas of Canadian society.Shortly after the meeting at Laval, the field's momentum increased with the founding of the Osgoode Society for Canadian Legal History. Two years later, the Osgoode Society published the first volume of its Essays in the History of Canadian Law series, edited by David H. Flaherty. Flaherty proposed a model for legal history in Canada that would explore the relationship between law and society in terms roughly connected to those of the "Wisconsin School," employing the method of Willard Hurst. 3 Knafla noted in a subsequent review that this approach, with its focus on the state's intervention in the industrializing economy, was simultaneously rather too Ontarian and too American to serve as a model for the young field. Furthermore, its instrumentalism largely sidelined important methodologies that might incorporate histories of crime, among other topics, in an understanding of the law, 4 methodologies that were actually anticipated in R.C.B. Risk's prospectus for Canadian legal history, which Flaherty commended as "Hurstian in the best sense of the term." For Risk, legal history could be considered "the study of the history of legal processes in three overlapping elements: the influences of societal values on the law, the effect of law itself on the mi...