Recommissioning Law Reform

Abstract

This article offers a critical analysis of expert Law Reform Commissions in Canada. The author traces the history of the idea of institutional law reform from its intellectual roots early in the twentieth century through its apotheosis in the 1960s and 1970s to its modern decline, which the author attributes to shifting cultural tendencies creating scepticism as to the value of law reform. The author argues for a reconceptualization of expert Law Reform Commissions, and his analysis proceeds in three stages. First, the author examines the concepts of law which are promoted by law reform and concludes that the widespread belief that explicit, official law (state legislation) is the superior juridical form is in fact erroneous. The author argues that formal legislation is not the only form of law, but in fact everyday practices (including non-linguistic ones) also constitute part of legal normativity. Next, the author contends that law reform is not the exclusive domain of the law reform commissioner, but in fact is carried out by judges, lawyers and all citizens every day simply by the performance of their daily activities. Finally, the author argues that in order to maintain their utility Law Reform Commissions must be willing to reimagine themselves. They must be willing to reduce staff and work with external personnel, they must reject narrow instrumentalist processes and focus on issues of broader relevance, and they must conceive of research projects not directly related to doctrinal categories of law and which are intended to create a product digestible by the entire population. The author concludes by arguing that, while there is a future for expert Law Reform Commissions in Canada, they must be willing to recommission themselves with a new focus.

The past, present and future of law reform in Canada

“…107 Taking up these challenges, the LRCC completed major projects in public law including a Criminal Code revision, incorporated interdisciplinary expertise and conducted empirical studies, and on social policy issues undertook background studies and working papers not fixated on immediate proposals. 108 Expanding on consultations, it visited law faculties across Canada, engaged student researchers, and published official work in public-friendly formats. 109 By conventional measures, its collaboration with government was spottier.…”

“…148 Projects may come from government or other sources, but often arise from expert suggestions and consultations. 149 Typically, work is led by specific project teams comprising commission personnel and sometimes outside experts. The process tends to be staged, with initial research perhaps followed by a draft publication, consultations and ultimately a final report.…”

“…One 'enemy' of institutional law reform in Canada, described above, has been government cost-cutting. 254 Many commissions were eliminated or restricted by government fiscal restraint. 255 Experts find this unsurprising, as the first wave of commission creation was after all, the product of a political era of welfare liberalism.…”

“…But in Canada, the repeated disbanding of commissions by governments opposed to the political substance of their reforms manifests a countervailing 'desire to make knowledge subservient to ideology'. 264 The standard narrative further notes that often it has been politically liberal governments that have created commissions and politically conservative governments that have closed them. 265 But the story may be more complex than that standard narrative seemingly implies.…”

“…267 For observers from later periods looking back from more conservative perspectives, the tendency would be to read these two concomitant features together as one-hence interpretations of institutional law reform as meaning taxpayer-funded 'spend-thrift, left-wing social engineering' with no democratic accountability. 268 In other words, the noted hostility of political conservatism to institutional law reform may not properly be to that notion itself, but rather a lingering impression from early high-visibility reforms shaped by the socio-economic contingencies of that era. In this regard, Murphy notes that Canada's first national commission was created with a 'groundswell' of all-party political support, whereas the creation of the second national commission-with the memory of the first being the most salient frame of reference-was fiercely opposed.…”