Legal History at CLSA annual conference

As usual, a number of legal history papers will be presented at the Canadian Law and Society Association annual conference at Congress in Fredericton, May 29-June 2.

Two panels dedicated to legal history are planned. The schedule is still preliminary, but it looks as though the first panel (Legal History 1: Constructing Subjects ) will feature Blake Brown, "Too many foreigners
[are] carrying weapons and something will have to be done: Canadian Gun Control and the World Wars", Michael Boudreau,  “The condition of things…where you have lived…is a fearful one”: The Executions of
George Gee and Bennie Swim in New Brunswick', and Sarah Hamill, "The Liquor Control Act and the Construction of the Masculine Ideal in Alberta, 1924-1930".

The second panel (Legal History 2: Criminologies) will include Joel Kropf, "Denouncing ‘the System’: Dr. O.C.J. Withrow, the Toronto Globe, and Penal-Reform Advocacy in the 1930s," Soren Frederiksen, "Fingerprinting in Canada from 1902-1911: An Exercise in Translation," and Chandra Murdoch, The Indian Agent as Justice of the Peace: Law and Regulation on Indian Reserves in Canada, 1876-1907."

Additional legal histories will be dispersed throughout the other panels. These include Lyndsay Campbell, "Oliver Dawsey and the Operation of Race in the Criminal Justice System in Canada West,"George Pavlich," Law and Sovereignty at the Cape Colony,1795-1803," Dwight Newman, "Aboriginal Law and Privaten International Law: A New Historical and Theoretical Nexus," Janna Promislow, "'It would only be just': A study of territoriality in the northwest in 19th century British North America," Susan Boyd, "Abolishing Illegitimacy: The Contradictions of Law Reform," Karen Pearlston, "Theorizing Coverture: Transformations in the Gender Order," and Christiane Wilke, "Becoming Responsible? Ascriptions and Performances of Responsibility in the Causa ESMA, 1983-1987."

Confederation Debates revisited

University of Alberta Faculty of Law professors James Muir and Peter Carver have introduced a historical role-playing element to a course in constitutional law, whereby students negotiate the BNA act and its successor, the Constitution Act, 1982 (including the Charter.)

The innovative course was inspired by a similar exercise conducted in American Universities, and supported by the Teaching and Learning Enhancement Fund at the U of A. You can read more about it here.

Thanks to legal historian Sarah Hamill, the U of A Faculty of Law's first doctoral student, for the head's up on this. Keep those cards and letters (and emails) coming in--we would love to pass on any news of legal-history related teaching, research, writing and public history projects.

(Fairly Recent) Book of the Week

Although we are publishing this blog with the imprimatur of the Osgoode Society, we are well aware that Canadian Legal History does not begin and end with the Society. There are many excellent publishers and promoters of legal history out there, and one of them is the Law & Society series of the University of British Columbia Press, under the general supervision of legal historian Wes Pue.

One of the series' books from 2009 which deserves wide readership is Feminized Justice: The Toronto Women's Court, 1913-34  by York University socio-legal scholar, Canadian Law and Society Association board member and website manager (English) and all-round nice person Amanda Glasbeek.

Here's the publisher's blurb:

In 1913, Toronto launched an experiment in feminist ideals: a woman’s police court. The court offered a separate venue to hear cases that involved women and became a forum where criminalized women and feminists met and struggled with the meaning of justice.

The court was run by and for women, but was it a great achievement? Amanda Glasbeek’s multifaceted portrait of the cases, defendants, and officials that graced its halls reveals a fundamental contradiction at the experiment’s core: the Toronto Women’s Police Court was both a site for feminist adaptations of justice and a court empowered to punish women.

Reconstructed from case files and newspaper accounts, this engrossing portrait of the trials and tribulations that accompanied an early experiment in feminized justice sheds new light on maternal feminist politics, women and crime, and the role of resistance, agency, and experience in the criminal justice system.

Two recent articles on legal aspects of education history

Paul Axelrod of York University's Faculty of Education and Anthony Di Mascio, a doctoral student in history at the University of Ottawa, have recently published articles dealing with different legal aspects of education law in Ontario in the 20th and 19th centuries respectively.

Axelrod's "No Longer a ‘Last Resort’:The End of Corporal Punishment in the Schools of Toronto" appeared in the June 1910 issue (vol.91 no.2) of the Canadian Historical Review. Here's the abstract:

In 1971, following a protracted and tumultuous debate, the Toronto Board of Education formally abolished the use of corporal punishment in its schools – the first Ontario board to do so. Corporal punishment continued to be employed elsewhere in Ontario and throughout Canada well into the 1980s, and the use of physical discipline was prohibited in all Canadian schools only in 2004, following a ruling of the Supreme Court of Canada. Why did educators and legislators defend corporal punishment for so long, and why did the tide turn in the last part of the twentieth century? Concentrating on legal and political dynamics, this article explores the ways in which the Toronto Board of Education grappled with the issue of corporal punishment in the three decades before its abolition. It seeks to situate the story of Toronto's approach to school discipline on the broader social landscape on which the battle over corporal punishment was conducted. It concludes that the particular configuration of the Toronto Board of Education following trustee elections in 1969 strongly affected the shape and outcome of the corporal punishment debate. 

En 1971, après un long débat tumultueux, le Conseil scolaire de Toronto a officiellement aboli l'utilisation du châtiment corporel dans ses écoles, le premier conseil scolaire à prendre une telle décision. Le châtiment corporel est demeuré employé ailleurs en Ontario et au Canada jusqu'au milieu des années 1980. La correction physique n'a été interdite dans l'ensemble des écoles canadiennes qu'en 2004, à la suite d'une décision de la Cour suprême du Canada. Pourquoi les éducateurs et les législateurs ont-ils voulu conserver le châtiment corporel durant si longtemps, et pourquoi le vent a-t-il tourné au cours de la dernière partie du XX siècle? Le présent article est axé sur la dynamique légale et politique et examine comment le Conseil scolaire de Toronto s'est accommodé de cet épineux problème du châtiment corporel au cours des trois décennies qui ont précédé son abolition. L'auteur cherche à situer l'histoire de la méthode torontoise envers la discipline scolaire dans un contexte historique plus vaste où s'est déroulé la lutte ayant trait au châtiment corporel. Il en vient à la conclusion que la configuration particulière du Conseil scolaire de Toronto après l'élection des fiduciaires en 1969 a eu une importante influence sur la forme et le résultat du débat sur le châtiment corporel.

Di Mascio's focus in "Educational Discourse and the Making of Educational Legislation in Early Upper Canada," which appeared in the Februrary 2010 issue (vol.50 no.2) of History of Education Quarterly,  also deals with the 'high law' of legislation and the inter-relationship of public opinion and legal change. The abstract:

The article presents a re-examination into the history of education in Upper Canada during the late 18th- and early 19th-centuries, challenging academic discourse relating to the popular support and impetus behind its first waves of advocacy in the contemporary government administrations. The article focuses on the preparations leading up to and the consequences of the 1816 Common School Act. Questions are raised addressing the level of government enthusiasm for expanding the educational system of the region. Conclusions are offered defining the scope of the popular pressure which led to improvements in the educational system.

Christopher Anderson on restricting rights of asylum seekers in Canada, 1951-1989 in CJPS

Christopher G. Anderson has published a paper in the Canadian Journal of Political Science which will be of interest to Canadian legal historians of the 20th century. "Restricting Rights, Losing Control: The Politics of Control over Asylum Seekers in Liberal-Democratic States—Lessons from the Canadian Case, 1951–1989" appeared in Vol. 43 Issue 4, at pages 937-959.

Here's the abstract:

Since the 1990s, a prevalent theme in the comparative literature on liberal–democratic state responses to increasing international migration holds that the expansion of rights protections for non-citizens has undermined restrictive border control policies. The argument presented in this article suggests that this is too partial an understanding of the ways in which control and rights intersect—the control–rights nexus. Accordingly, it analyzes Canadian policies towards asylum seekers from the 1950s to the 1980s to explore the ways in which the restriction of rights can undermine state control policies by generating rights-based politics, encouraging the circumvention of control policies and creating administrative inefficiencies. Altogether, the analysis provides an important refinement of the study of the control–rights nexus and allows for a more complete understanding of control policies and politics in liberal–democratic states.

Abstract (French):

Depuis les années 1990, un thème répandu dans la littérature comparative sur les réponses des États libéraux démocratiques à la croissance de la migration internationale soutient que l'extension de la protection des droits des non-citoyens a compromis les politiques restrictives de contrôle des frontières. L'argument présenté dans cet article suggère que ce thème offre une compréhension trop partielle de la dynamique d'intersection du contrôle et des droits - le control-rights nexus. En conséquence, il analyse les politiques canadiennes envers les demandeurs d'asile depuis les années 1950 jusqu'aux années 1980 pour explorer les manières dont la restriction des droits peut miner les politiques de contrôle de l'État en générant des politiques de droits, en encourageant le contournement des politiques de contrôle et en créant des lourdeurs administratives. En somme, l'analyse apporte une mise au point importante à l'étude de cet enjeu et permet une compréhension plus complète des politiques de contrôle et de la politique dans les États libéraux démocratiques.

Call for Papers: Canadian State Trials, vol.4

The editors of the Canadian State Trials project announce that work is beginning on Volume 4 and invite potential contributors to submit preliminary proposals for a chapter in the volume.

The volumes in the State Trials series consist of studies of security threats to the state in a given historical period in Canada. The published volumes so far are:

Volume 1        Law, Politics and Security Measures, 1608-1837 (1996)

Volume 2        Rebellion and Invasion in the Canadas, 1837-1839 (2002)

Volume 3        Political Trials and Security Measures, 1840-1914 (2009)

The fourth volume will cover the period 1914 to 1939. As with previous volumes, it will focus on the use of law and legal institutions to respond to real and perceived state security threats including the management of public dissent and disorder. Examples of potential topics for chapters include (but are not limited to): accounts of trial(s) for treason and for sedition (including in military courts); suspension of habeas corpus during World War I; responses to the Winnipeg General Strike and to other incidents of labour unrest during the 1920s and 1930s; and prosecutions of, or legal measures against, ethnic, religious, political and other groups in the name of state security.

Those interested in contributing should contact both editors with a relevant topic and a brief description of the proposed treatment, along with a short CV, by August 1, 2011.

Barry Wright (b_wright@carleton.ca)

Susan Binnie (wsbinnie@sympatico.ca)

Mundell Medal awarded to Constance Backhouse

Friends,

Every year the Ministry of the Attorney general for Ontario awards the David Walter Mundell Medal, which honours those who have made a distinguished contribution to law and letters through their legal writing. I am delighted to be able to tell you that the 2010 recipient is our legal history colleague Constance Backhouse. This is deserving recognition, and is especially pleasing because the Mundell Medal is not for legal history alone, but all areas of legal writing.

Jim Phillips

Dissertation on the judiciary in historical and sociological context

Martine Valois' doctoral dissertation, "Evolution du droit et de la fonction de juger dans la tradition juridique occidentale. Une etude sociohistorique de l'independance judiciaire" (Universite de Montreal, 2009) is now available on Proquest.

Here's the abstract in English:

This thesis examines the function of the judiciary in the legal system in a historical and sociological perspective. Through the lens of history and sociology, the author reviews and considers the changes in the role of the judge in the development of law. The heuristic benefit of this approach borrowed from history and systemic theory, is invaluable. Firstly, it demonstrates that the place reserved for the judicial creation of law in the legal system is tributary to what is considered as the source and legitimacy of law. Secondly, it sets in an evolutionary perspective the significant changes that occurred in the development of law and the judicial function. The characterization of the
judicial function evolves from a political science's viewpoint to a legal perspective. Through this reappropriation by the legal science, the judicial production of law can now be examined in its systemic function. As well, exploration of the sources of the function of justice renders possible and understanding of the rationale used by judges throughout history to legitimize their position in the legal system.

The thesis supports the proposition that, along with legal conditions relating to the status of judges, a set of sociological conditions must exist in order for judicial independence to be fully protected and the rule of law upheld. These conditions are social differentiation, a structure of conditional programs for law, and limitation in
the social system of the responsibility and accountability of judges following
the fulfillment of their judicial function.

Finally, in the final stage of her socio-historical research, the author demonstrates how the current judicial interpretation of the conditions for judicial independence enhances the theoretical foundations that situate the judicial function at the centre of the legal system.

Oliver Prize Announcement

And here's another one..

Peter Oliver Prize in Canadian Legal History

The Osgoode Society for Canadian Legal History invites nominations
for the Peter Oliver Prize in Canadian Legal History. The prize,
named for Professor Peter Oliver, the Society's founding
editor-in-chief, is awarded annually for published work (journal
article, book chapter, book) in Canadian legal history written by a
student. Students in any discipline at any stage of their careers are
eligible. The Society takes a broad view of legal history, one that
includes work in socio-legal history, legal culture, etc., as well as
work on the history of legal institutions, legal personnel, and
substantive law.

Faculty members are encouraged to nominate student work of which they
are aware, and the Society will also be pleased to accept
self-nominations. Those nominating their own work should send a copy
of it to the Society. The deadline for nominations for the 2011
Prize, to be awarded for work published in 2010, is April 30, 2011.

Please send nominations to Professor Jim Phillips, Editor-in-Chief,
Osgoode Society for Canadian Legal History, Osgoode Hall, 130 Queen
Street West, Toronto ON M5H 2N6, or by email to j.phillips@utoronto.ca

Call for applications--R.Roy McMurtry Fellowship in Canadian Legal History

Many of you will already have had this announcement via email. And here it is as a post on the blog!

R. Roy McMurtry Fellowship in Canadian Legal History

The R. Roy McMurtry Fellowship in Canadian Legal History was created
on the occasion of the retirement as Chief Justice of Ontario of the
Hon. R. Roy McMurtry. It honours the contribution to Canadian legal
history of Roy McMurtry, Attorney-General and Chief Justice of
Ontario, founder of the Osgoode Society for Canadian Legal History
and for many years (and currently) the Society's President. The
fellowship was established by Chief Justice McMurtry's friends and
colleagues, and endowed by private donations and the Law Foundation
of Ontario.

The fellowship is to support graduate (preferably doctoral) students
or those with a recently completed doctorate, to conduct research in
Canadian legal history, for one year. Scholars working on any topic
in the field of Canadian legal history are eligible. Applicants
should be in a graduate programme at an Ontario University or, if
they have a completed doctorate, be affiliated with an Ontario
University. The fellowship may be held concurrently with other
awards for graduate study. Eligibility is not limited to history and
law programmes; persons in cognate disciplines such as criminology or
political science may apply, provided the subject of the research
they will conduct as a McMurtry fellow in Canadian legal history. The
selection committee may take financial need into consideration.

The fellowship will be awarded in July 2011, and will have a value of
at least $16,000. Applications will be assessed by a committee
appointed by the Osgoode Society for Canadian Legal History and
consisting of Society Directors and academics. Those interested
should apply by sending:

A full curriculum vitae
A statement of the research, not exceeding 1,000 words, that they
would conduct as a McMurtry fellow. The statement should clearly
convey the nature of the project, the research to be carried out, and
the relationship, if any, between the project and previous work done
by the applicant.
The names and addresses (including email addresses) of two academic
referees. Please do not ask your referees to write; the Society will
contact them if necessary.
For persons not currently connected with an Ontario University, an
indication of how and when they intend to obtain such a connection.

Please send applications to Marilyn Macfarlane, McMurtry Fellowship
Selection Committee, Osgoode Society for Canadian Legal History,
Osgoode Hall, 130 Queen Street West, Toronto, M5H 2N6. The deadline
for applications is April 30, 2010. For more information
contact mmacfarl@lsuc.on.ca.

New Blog on Canadian Legal History

Welcome to the new canadian legal history blog. The blog is the brainchild of Mary Stokes, on behalf of the Osgoode Society. We are curently running it on blogspot but we hope to move it to the Osgoode Society's new website when that site gets going this summer.

We hope the blog will prove a useful place for the wonderful community of legal historians we have in Canada. It won't be the place to go to discuss the meaning of the second amendment of the US constitution, or medieval pleading and practice, but we want it to be where we discuss aspects of the unique and exciting legal history of our country.

Jim Phillips