BOOK REVIEWSLAW AND LEARNING: REPORT TO THE SOCIAL SCIENCES ANDHUMANITIES RESEARCH COUNCIL OF CANADA. By the ConsultativeGroup on Research and Education in Law. Social Science andHumanities Research Council of Canada, 1983. Pp. x, 186. (free ofcharge)

All disciplines experience a periodic desire to engage in a detachedand critical assessment of where they are now and where they are going.In the case of legal educators, this desire has produced the recent Lawand Learning: Report to the Social Sciences and Humanities ResearchCouncil of Canada (hereinafter referred to as the Report) which examinesand evaluates legal education and scholarship in Canada.

As the title of the study indicates, it is the report of the ConsultativeGroup on Research and Education in Law which was established in 1980by the Social Sciences and Humanities Research Council of Canadaunder the chairmanship of Professor Harry Arthurs, the former dean ofOsgoode Hall Law School.' The group was assisted in its task by anAdvisory Panel chaired by the Right Honourable Bora Laskin, ChiefJustice of Canada.2 Both the Group and the Advisory Panel werecomposed primarily, though not exclusively, of legal academics andpractitioners. In the course of its proceedings, the Group held regionalconsultations 3 and invited written submissions. It also sponsored fourresearch studies which were published separately. 4

The mandate of the Group was "[t]o examine and advise upon legalresearch and education in Canada ... "5 with particular reference to therole played by law faculties in those endeavours, the state of legalresearch and graduate legal education, and the possibility of finding waysof instituting improvements in these areas. The Group decided that whilethe overall context of the study would be legal education, the focus of itsinquiry would be "legal scholarship in the broad sense - including someaspects of study at the undergraduate and graduate level, and legalresearch and publishing.' '6

The Report begins with an examination of the history, faculties, andcurrent themes and structures of Canadian legal education. The presentcurriculum, which evolved in the late 1960's and early 1970's inresponse to pressures for a more "humane" education, is an "eclectic"one in which students must select from a large number of courses in acareer-oriented, or a policy-oriented or interdisciplinary stream. The

1 The members of the Consultative Group are listed at p. viii.2 The members of the Advisory Panel are listed at pp. ix-x.3 The guidelines for, and participants in, the regional consultations are given in

App. 2.4 The research studies were intended to establish a data base for the Report and are

identified at p. vi.5 P. 165.S P. 177.

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great majority of courses are of the former type, and the latter types aregenerally undersubscribed. There is no comprehensive or co-ordinatedapproach to the study of law that incorporates the goals of both theprofessional and non-professional sectors within the faculties. As aresult, legal education, legal research, and the legal profession fail toachieve their full potential.

If such is the failure of legal education, the problems of legalresearch are even greater. There is very little published in the area offundamental or interdisciplinary research, often as a result of "the dearthof researchers with interdisciplinary capability" .7 What little research isundertaken (relative to other academic fields) is usually descriptive orprofessional in nature, rather than scholarly or fundamental. Such work,of course, reflects the demands of the practitioner and the judiciary, theinterests of most legal researchers and law students, and the contents of alargely profession-oriented curriculum and teaching load.

One of the principal solutions advocated in the Report is thesubstitution of a "pluralist" curriculum for the current eclectic one. Apluralist legal education would permit, and indeed encourage, bothfaculty members and students to specialize in either a professional or anon-professional, scholarly stream of legal study. A student would begiven the choice of proceeding within either set of courses, eachconsisting of an integrated series of offerings directed towards a definedgoal. Rather than choosing from a "mixed bag" as at present, a studentinterested in a particular career could follow a comprehensive pro-gramme of study directed toward that career. Not only would this makeclear the range of choice open to the student, it would also permit afaculty member whose interests were non-professional or interdisciplin-ary to develop and refine his or her research interests in the classroom.Legal research as a whole, and scholarly research in particular, would beenhanced.

In addition to the need for a scholarly discipline of law, othermethods and strategies are recognized by the Report as being necessaryin order to promote more scholarly legal research in Canada. Betterfunding, more specialized research institutes, a co-ordinated publishingindustry, and reduced or flexible teaching workloads are among thethings suggested by it.8 The specifics of the Report's recommendations,however, do not concern me greatly here and I have few problems withthem. I feel that it would be much more valuable to address thefundamental issues that the Report attempts to examine. It is these issuesand their treatment which are the most illuminating aspects of the Reportand which will ultimately determine the validity of its conclusions.

One must begin by recognizing the valuable contribution the Reporthas made in its identification and discussion of many of the underlying

7 P. 126.8 See Ch. 11, "Conclusions and Recommendations", at pp. 157-58.

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problems encountered in pursuing legal research and a legal education.This contribution is particularly encouraging in the context of aprofession and an academic community which have often failed to beself-critical. It is especially heartening to those whose interests are morescholarly than professional. The Report's description of the trials andisolation of those with non-professional research and teaching interests issuccinct and compelling:

They may encounter greater student resistance . . . and find their coursesundersubscribed. They may experience pressure from deans and colleagueswho want them to shoulder substantial responsibilities for professionaltraining. They may be denied recognition and rewards if their work is notperceived to have professional relevance; almost certainly they will seldombe in demand for lucrative consultations or contracts, at least in areas ofscholarly interest. As a result, they may shift away from these areas to othersthat are more congruent with the interests of colleagues, students and the"legal" world. Nor do they receive solace from colleagues in otherdisciplines, who tend to view them as lacking credibility in any disciplinesave law itself, a credential that is not highly negotiable among Canadianintellectuals. .... 9

However, it is in addressing these problems that the Report falters.Its central focus is on the value of a scholarly discipline of law: the readeris told that such a discipline does not now exist, that it is needed, and thatmethods are available for its attainment. Yet many may still be left indoubt as to what such a discipline actually is. While many legal educatorsand professionals would no doubt like to believe that they are engaged insuch a task already, the Report will neither convince those who have been"doubters" in the past nor comfort those who are struggling for adefinitive resolution. It is my contention that, in the end, the Report failsto convince the reader who is seeking a comprehensive and coherentdiscussion of the intrinsic nature of legal scholarship.

Ironically, the Report seems unable to escape the inherent limita-tions of traditional legal writings: it is descriptive and expository, but it isnot "analytical" in the sense that that word is used outside the narrowand artificial constraints of legal reasoning. In the same way that, as theReport points out, today's legal educators and researchers are to someextent limited by their own educational background and experiences, sotoo are the authors of the Report.

This point is well illustrated in the section on current structures andcurricula in legal education in Canada. The discussion there purportedlygives a context to the Report's focus on legal research, yet while itdescribes the current conditions, it does not explain them. Many writerswould argue that law, and therefore legal education, must be viewedinstrumentally and can be understood only in the context of past and

9 P. 137.

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current social conjunctures. 1 But the Report does not attempt to do this.It ignores the arguments that there may be an ideological consequence tothe existing constructs found in legal education and that elite interestsmay be served by the present structuring of such an education (forexample, its corporate and commercial bias and the limited access to it bycertain income and minority groups)." Describing or "labelling" theproblems is no longer enough; the underlying causes must be examined,not merely the symptoms or manifestations of the structural problems insociety. Without such an examination, any solutions are bound to becorrespondingly flawed.

While at times reflective and self-critical, the Report too oftenplaces its faith in the ability of legal writers and educators to meet thechallenges that it poses. Yet the evidence for such faith is difficult tofind. While researchers in other disciplines have sought explanations(both empirical and theoretical) within the context of social relations,most legal researchers have ignored this dimension. There are individualexceptions, of course, but they are few in number. Moreover, thisproblem of resources is not adequately addressed when the practical issueof finding faculty and students for the scholarly stream is considered.

In the past the constraints of legal writing, unfortunately, have notbeen limited to those of weaknesses in analysis or the absence of sound(explicit) theoretical frameworks. The insularity, perhaps arrogance, oflegal researchers, and their unwillingness or inability to seek insight andguidance from other disciplines, is reflected throughout the Report itself,notably in its discussions of legal research and a scholarly discipline oflaw. Any investigation of legal research in Canada must give more thanperfunctory attention to the contributions of writers from other disci-plines. 12 The answer to the allegation of the poor state of legal research

10 See, e.g., Althusser, Ideology and Ideological State Apparatuses, in LENINAND PHILOSOPHY AND OTHER ESSAYS (L. Althusser ed. 1971); Z. BANKOWSKI & G.MUNGHAM, IMAGES OF LAW (1976); MARXISM AND LAW (P. Beirne & R. Quinney eds.1982); H. COLLINS, MARXISM AND LAW (1982); LAW, STATE AND SOCIETY (B. Fryer,A. Hunt, D. McBarnet & B. Moorehouse eds. 1981); CRIME AND CAPITALISM (D.Greenberg ed. 1981); S. HALL, C. CRITCHER, T. JEFFERSON, J. CLARKE & B. ROBERTS,POLICING THE CRISIS: MUGGING, THE STATE, AND LAW AND ORDER (1978); THEPOLITICS OF LAW (D. Kairys ed. 1982); N. POULANTZAS, POLITICAL POWER AND SOCIALCLASSES (1973) and G. THERBORN, WHAT DOES THE RULING CLASS Do WHEN ITRULES? (1978).

11 See, e.g., D. OLSEN, THE STATE ELITE 42-64 (1980).12 This, however, was not done without some misgivings. At p. 75, the Report

states:We should state at the outset that we did not attempt to include in this analysislaw-related research in the many disciplines that impinge upon law, such ascriminology, sociology, economics, political science, philosophy, or history.This decision was unfortunately dictated by practical constraints of time andresources; and it means that the following analysis is of research carried outwithin the legal community alone. Especially in light of our conviction thatinterdisciplinary legal research should be enhanced by various means, we

Ottawa Law Review

may be that this condemnation is too broad. It may well be that thosesociologists, political scientists, philosophers, and others who writeabout law are advancing our understanding of the law's fundamentalunderpinnings in theory and in practice, 13 and that they are best equippedwith the analytical tools to do so. If there is such an area as a scholarlydiscipline of law, perhaps it is best left to the social scientists with thedisciplinary tools to engage in it.

The argument can be made that legal researchers and educatorsshould confine themselves to what they do best and not attempt tobecome second-rate sociologists, political scientists, or philosophers.' 4

Perhaps it is time to realize that if it is not rewarding to approach lawfrom the traditional perspective, then the answer is to train oneself tobecome a sociologist, or political scientist or the like. The accomplish-ments in other disciplines, when compared to the paltry results found inlegal writings, might convince the reader that the solution is not toartificially create a scholarly discipline of law, but rather to seek out amore intellectually challenging and fulfilling discipline. This is the typeof issue which the Report should have examined. Its failure to do sorenders it unconvincing. For the same reason, the Report is just asunconvincing on the value of enhancing graduate legal studies.

What is more, the elitist and limiting attitudes found in lawgenerally are also reflected in the Report's basic approach to the study oflaw in Canada. The authors restrict themselves to the traditionalprofessional law school setting and thereby deprive themselves of anopportunity to study the teaching of law in a social sciences environment.This is attempted in many social science and liberal arts programmesacross the country, notably in Carleton University's Department of Law(in which I teach). 15 I mention this point not out of self-congratulation,for my experience in teaching law in an undergraduate social sciencessetting has not convinced me of the intellectual efficacy or value of sucha programme, but rather to challenge the entrenched notion that legaleducation and research are the exclusive domain of law schools and tosuggest that by studying such programmes the Report might be able toargue more authoritatively for the possibilities of creating a scholarlydiscipline of law (either within or outside of law faculties). 11

particularly regret that we have not been able to survey it systematically inthis inventory.13 See supra note 10.14 See Bergin, The Law Teacher: A Man Divided Against Himself, 54 VA. L. REV.

637 (1968).15 For a description of the Department, see Barnes, The Department of Law,

Carleton University, Ottawa, 3 DALHousi L.J. 814 (1977). It should be noted that theDepartment has changed its programme somewhat since 1977 - it now offers a B.A.major and honours programme in law in addition to the combined major and honoursprogramme - and that it has grown considerably with approximately 4,000 studentsnow in its courses.

16 These programmes are dealt with briefly at pp. 58-59.

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The Report's commitment to the importance of scholarly research iscontradicted to some extent by its argument that the decisive criterion ofevaluation should be the practical, not the scientific. It thus gives controlback to those who have exhibited indifference to such research in thepast. The Report states:

In the end, lawyers will be among the most important ultimate consumers ofscholarly work. Unless legal scholars are quite indifferent to the impact oftheir work - and we believe that science neither demands, nor can tolerate,such indifference - they must have credibility with lawyers. This credibilityis already strained by the novelty and potentially threatening nature of thescholarly project as far as lawyers are concerned; it would be lost altogether ifthat project were pursued in total isolation from professional activities.17

It is difficult to imagine other scholarly disciplines seeking such ablessing from the practitioner. It is not that the practitioner should beignored, but rather that the priority in undertaking legal research shouldnot be the reception that the research might find among practitioners andjudges. Indeed, some might argue that it has been the tie to the professionand the consequent striving to legitimate its activities which has heldback scholarly research in law for so long and has ultimately contributedto the law's poor reputation among Canadian intellectuals in otherdisciplines.

Unfortunately, the Report as a whole has the tone and earmarks of astudy by enlightened oil company executives who have been enlisted toinvestigate rumours of price-fixing in the oil industry. The investigators,though well-meaning, cannot escape their heritage. As a result, whilethey are at times critical and contrite, they are also self-congratulatoryand assured of the "rightness" and potential worth of the cause in whichthey are engaged. The failures of the present and the errors of the pastare, they argue, the result of structural irregularities and improperoperating mechanisms. In the case of the Report, however, it would havebeen useful first to have convinced the reader that the emperor hasclothes, and that the intellectual or scholarly route in the study of law is areal and possible one.

The Report too often falls victim to the very problems it finds withinthe existing discipline of law: narrowness, lack of good analysis and atheoretical framework, and a sense of self-importance. It fails to justifythe encroachment of legal educators and researchers into an area which inthe past has been largely foreign to them and which is already occupied tosome extent by thoughtful and thought-provoking researchers in otherdisciplines. The point is not that the conclusions and solutions found inthe Report are invalid; it is that the case has not been made.

R.P. Saunders*

17 p. 138.

* Department of Law, Carleton University, Ottawa.

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