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Wednesday, August 29, 2012

Smith on Canadian Currency and Banking Laws 1871

In the vol. 13 (3) September 2012 issue of Enterprise & Society, an article by Andrew Smith of Coventry University, "Continental Divide: The Canadian Banking and Currency Laws of 1871 in the Mirror of the United States." Professor Smith's blog on economic and business history, The Past Speaks is highly recommended (by me!)

Here's the abstract:
The essay discusses the ways in which an 1871 banking and currency law helped Canada form a stable banking industry, and compares this industry with that of the U.S. The laws' implementation of Canadian transcontinental branch banking and importance to Canadian state formation are outlined. The effects of Canada's Britain-inspired political culture on the formation of this banking system are also detailed. Other topics discussed include monetary policy, usury laws, and legislative debates.

Monday, August 27, 2012

New work on Canadian human rights policy (including history)

A new publication from McGill-Queen's University Press,
Why Canada Cares:
Human Rights and Foreign Policy in Theory and Practice by Andrew Lui includes a large dollop of legal history as part of the examination of Canadian human rights foreign policies.
Here's the publisher's blurb:
Support for international human rights has become an entrenched part of Canada's national mythology. Despite the gravity of human rights issues and how Canada appears to champion various causes, the role of human rights in Canadian foreign policy has received surprisingly little scrutiny. In Why Canada Cares, Andrew Lui brings clarity to this under-explored part of Canada's identity.
Lui provides a chronological and theoretically grounded analysis of human rights in Canadian foreign policy since 1945. He argues that while the country has rarely proven willing to sacrifice material advantage for international human rights causes, Canada has pursued human rights as part of a broader attempt to cement individual rights as the cornerstone of Canadian federalism and aimed to mitigate friction between the country's diverse social groups. In other words, international human rights were implemented as a way to express and establish an expansive vision of what Canadian society should look like in order to survive and flourish as a coherent and unified political entity.
Why Canada Cares uncovers the foundations of Canada's international human rights policies and offers insight into their possibilities and limits.

Saturday, August 25, 2012

Updated: Kirkby on Henry Maine and the ReConstitution of the British Empire

Coel Kirkby, who is finishing up his dissertation at St. Edmund's College, Cambridge has sent me a pdf of a recently published review article in the Modern Law Review (not yet online). It's a review of Karuna Mantena s' Alibis of Empire: Henry Maine and the Ends of Liberal Imperialism, (Princeton: Princeton University Press, 2010, 269 pp, hb £27.50.) Coel hopes it explains 'ideologies' better than the paper he gave at the Toronto Legal History Group workshop in the spring. Well, Coel, I confess I hardly remember that discussion now, but I think the review essay is both clear and interesting. You should post it on SSRN, though, so I could include a link! Or on your page.

Update: Coel says the article is now online at .

Wednesday, August 22, 2012

Nelson and Waters on WWII Allied Bombing of Civilians

Just posted on SSRN and destined for vol. 14 of the Journal of the History of International Law, University of Windsor Professors Christopher P.M. Waters and Robert Nelson (of the Faculty of Law and Department of History respectively) collaborate on "The Allied Bombing of German Cities During the Second World War from a Canadian Perspective."

Here's the abstract:

This paper addresses the history of the legality of the aerial bombardment of civilians, from the earliest attempts at legalization, through the inter-war period and into the actual bombing campaigns of the Second World War. We then chart the paucity of discussion of the legality of said bombing both during the war and throughout the Cold War, and finish with the occasional interruptions to the legal silence since 1992 in Canada and elsewhere.

Tuesday, August 21, 2012

Cameron on 30 years of sec. 2 b of the Charter

The Legal History E-Journal sends notice that Jamie Cameron of Osgoode Hall Law School has posted an article on "A Reflection on Section 2(b)’s Quixotic Journey, 1982-2012", which appears in the Fall 2012 issue of the Supreme Court Law Review has been posted on SSRN.

This is the sort of thing I debate (with myself) about including in this blog. (And sometimes get questioned about.) It's not capital H history, but I think it is relevant to historians.

I probably have mentioned here before that I believe presentism has its place in legal history. Or perhaps it is better to say that history has a place in normative analysis, which is almost necessarily presentist.

Prof. Cameron is a judicial biographer, and as such a historian of judges lives' and works, and a constitutionalist, and therefore a historian (of sorts) of jurisprudence. I mean no disrespect: Professor Cameron does not purport to be doing history qua history, as the venue of publication evinces. And as the abstract makes clear, this piece goes beyond presentism--to futurism in fact. But the acknowledgment that the present is not forever--it is not present for all time--is especially marked in constitutionalists, and to my mind is a welcome change from what Philip Girard calls the conception of timeless past seen in much legal writing, especially in respect to legal subjects in which the common law dominates. This acknowledgement should be encouraged by legal historians. The importance of the past and the fact of the future are to my mind two sides of the same coin.

Here's the abstract, which should illustrate what I mean.

The point of departure for the journey ahead is the journey behind, from 1982 to 2012. This reflection describes s.2(b)’s journey in the first thirty years of the Charter as quixotic: principle led the way at times but too often and too easily was displaced by unsound methodologies. The expressive freedom jurisprudence developed an incoherent methodology that applied content neutrality under s.2(b) but readily upheld content-based limits under s.1 by deferring to perceptions – both legislative and judicial – that certain expressive activities are harmful. Meanwhile, the status of the press and media under s.2(b) remains unclear because the Court has been unwilling to constitutionalize the newsgathering function or acknowledge that interference with that function violates the Charter. By contrast, the Court’s response to open justice – which engages expressive and press interests – produced a methodology that gave strong protection to values of access, transparency, and accountability in the justice system. Having discussed the doctrinal patterns and anomalies of the first thirty years this reflection looks ahead – to offer a more holistic view of s.2(b) which highlights process values, and outline the steps that must be taken demonstrate that the Charter’s guarantees of expressive and press freedom truly matter
Cameron's 'reflection' may not be legal history per se but should be a point of departure for legal historians. She has laid out the 'how' of s.2 b's non-linear journey. Historians can tackle the 'why' of this meandering..

Friday, August 17, 2012

Here is an announcement of a very interesting looking symposium on the legal history of the French Atlantic.

The French Atlantic has not yet received the sustained attention given to the British and Spanish Atlantic, particularly where the topic of law is concerned. This conference will explore the legal dimension (broadly conceived) of the French Atlantic empire in the early modern period. The variegated and rapidly evolving juridical order of ancien régime France was deeply implicated in the expansion of overseas commerce, the founding of colonies, and the creation of imperial administrations.
Participants may explore topics such as: legal discourse and imperial ideologies; the establishment of colonial jurisdictions in Canada, Louisiana, and the French West Indies; the regulation of slavery; indigenous peoples and the law; the emergence of colonial land tenures; and the legal framework for trade and business enterprise. The organizers wish particularly to encourage comparative approaches that consider more than one French colony and that examine contrasts and convergences with the British, Spanish and Portuguese empires. In according due attention to the distinctive features of French law and the French New World empire, we hope to enrich understandings of Atlantic history generally.

Allan Greer (McGill History) and Richard Ross (Illinois at Urbana-Champaign Law and History) organized “Law and the French Atlantic.”  The conference is an offering of the Symposium on Comparative Early Modern Legal History, which gathers yearly under the auspices of the Center for Renaissance Studies at the Newberry Library in Chicago in order to explore a particular topic in the comparative legal history of the Atlantic world in the period c.1492-1815.  Funding has been provided by the University of Illinois College of Law.

Attendance at the Symposium is free and open to the public.  Participants and attendees should preregister by contacting the Center for Renaissance Studies at the Newberry Library at 312.255.3514, or send an e-mail to<>. Papers will be precirculated electronically to all registrants.

For information about the conference, please consult our website at or contact Prof. Richard Ross at<> or at 217-244-7890.

Here is the program and schedule:

9:00 Welcome: Allan Greer (McGill, History) and Richard Ross (University of Illinois,
Urbana-Champaign, Law and History)

9:05 to 10:35: Panel: The Legal Foundations of the French Atlantic Empire

Alexandre Dubé (Omohundro Institute of Early American History and Culture): “The Army, the Navy, the Governor, and the Colony: Frameworks of Public Law in the French Atlantic”

Brett Rushforth (William and Mary, History): “‘Governed by the Same Laws, without Distinction or Difference’: Legal Pluralism and the Construction of Empire in the Early Modern French Atlantic”

Miranda Spieler (Arizona, History): “Slaves and the Old Regime: The View from Paris”

Commentator: David Bell (Princeton, History)

Chair: Richard Ross (University of Illinois, Urbana-Champaign, Law and History)

10:35 to 10:50: Refreshment Break

10:50 to 12:20: Panel: Economy and Empire

Allan Greer (McGill, History): “A Feudal Empire?  Land Tenure in the French Atlantic”

Helen Dewar (University of Toronto, History): “Company Logic Meets Legal Accountability: The Question of Liability of Chartered Enterprises in the Mid-17-Century French Atlantic”

Catherine Desbarats (McGill, History): “Payback for Default:  Legalities of Counterfeit in the French Atlantic”

Commentator: Paul Cheney (University of Chicago, History)

Chair: To be announced

12:20 to 1:40: Lunch: Participants and audience members are invited to try the restaurants in the neighborhood around the Newberry.

1:40 to 3:10: Panel: Slavery and the Code Noir

Guillaume Aubert (William and Mary, History): “Beyond the Codes Noirs: The Making of Slave Law(s) in the Early Modern French Atlantic”

Jean-François Niort (Université des Antilles et de la Guyane, Law): “The Code Noir and the Evolution of the French Slave Colonial Law: A New Perspective”

Malick Ghachem (Maine, Law): “The Afterlife of the Law of Slavery: The Code Noir and the Language of Rights in the Era of the Haitian Revolution”

Commentator #1: Jean Hébrard (Ecole des Hautes Etudes en Sciences Sociales; and University of Michigan, History)

Commentator #2 and Chair: Lea Vandervelde (Iowa, Law)

3:10 to 3:25: Refreshment Break

3:25 to 4:55 Panel: The Seven Years’ War and After

Christian Crouch (Bard, History): “Indians Out of the Shadows and into the Plot: Tracing Indigenous Voices in Building a French Atlantic Case for Just War”

Michel Morin (Université de Montréal, Law): “The Reactions of the ‘New’ Subjects of Quebec to British Justice for Private Law Matters, 1760-1774”

Hannah Weiss Muller (Harvard, History and Literature): “From French to British: Remonstrance, Representation, and Remediation between Empires”

Commentator #1: Shannon Lee Dawdy (University of Chicago, Anthropology)

Commentator #2 and Chair: Robert Morrissey (University of Illinois, Urbana-Champaign, History)

5:00 Adjourn

Updated: Toronto Legal History Group Fall 2012 schedule

Many subscribers to this blog will know about the Toronto Legal History Group (shortly to be renamed the Osgoode Legal History Workshop, and to operate undeer the auspices of the Osgoode Society. This is an informal Wednesday evening seminar that meets c. 14 times. A paper is pre-circulated and then discussed. Participants are graduate students and faculty in law and history from U of T, York, McMaster and other institutions, as well as law students and members of the profession. Anybody with an interest in legal history is welcome to attend. If you would like to be put on the e-mail list and to receive the papers and other notices, please e-mail

The schedule for the next term follows. All sessions are in the Flavelle Room, Flavelle House, Faculty of Law, University of Toronto, starting at 6.30.

Wednesday September 12 - Matthew Light, University of Toronto: "The Ambiguities of Influence: Russia, the Death Penalty, and Europe"

Wednesday September 26 - Nhung Tran, University of Toronto, “Mortgaging Local Culture: the Commodification of Village Performance in Seventeenth and Eighteenth Century Vietnam”

Wednesday October 10 - Bettina Bradbury, York University: “Troubling Inheritances: An Illegitimate Maori daughter contests her father’s will in the New Zealand Courts and the Judicial Committee of the Privy Council.”

UPDATE (NEW): Wednesday, October 17, Catherine MacMillan, University of London: "Judging the Coronation cases."
Wednesday October 24 - Doug Hay, York University: “Criminal Lawyers in Eighteenth Century England”

Wednesday November 7 - Bob Steinfeld, University of Buffalo, TBA

Wednesday November 14 - Doug Harris, University of British Columbia, and Jim Phillips, University of Toronto: “History of De facto Expropriation in Canada.” Doug and I will discuss our chapters in the forthcoming book Property on Trial: Canadian Cases in Context, to be published by the Osgoode Society. Eris Tucker of Osgoode Hall Law School, one of the volume editors, will also make some remarks. The book launch for this book, and the other Osgoode Society publications for 2012, is on Thursday November 15, 5 p.m., at Osgoode Hall.

Wednesday November 21 - Paul Craven, York University: “Called to Account: Magistrates and Public Accounts in 19th Century New Brunswick”

Wednesday December 5 - Anthony Gaughan, Drake University: "Do the Ends Justify the Means? The Trial of the Watergate Burglars."

Thursday, August 16, 2012

Legal History of the British Empire

The mention of Ivor Richardson's article on the JCPC prompts me to post about something I should have noted some time ago, the recent conference on the Legal History of the British Empire. This was the first of its kind, and held at the National University of Singapore in early July. It was the initiative of John McLaren of the U of Victoria and David Williams from Auckland.

The conference was very well attended given the distance involved. There were about 120 attendees, and someone, not me, did a nationality count. If my memory is correct, there were 31 Australians, 21 Canadians, a dozen new Zealanders, and the rest was comprised of scholars from the UK, the US, South Africa, Sri Lanka, Bangladesh, Malaysia, Trinidad and Tobago, Hong Kong, China, Singapore, France (!) - altogether a total of 16 countries. The coverage of topics was even more diverse than that, for some people gave papers on countries other than  their 'own.' Mcmaster's Bonny Ibhawoh, for example, spoke about his work on Africa, a New Zealander gave a paper on Samoa, while Hudson Janisch of Victoria gave the only paper on St Helena. It was nice to see an acknowledgemnt that US history is also British empire history, although a paper on the 19th century US had to be eimaginatuively packaged as a 'legacy' of empire.

The quality and variety of papers in the sessions I attended was generally very good. Richard Boast of Wellington was superb on explaining the NZ Maori land court, a graduate student from China gave a very good piece on public health in Hong Kong, John McLaren's talk on the multiple meanings of the rule of law in the empire was excellent, there was a fascinating exposition of Judge John Gorrie's political activism in colonial Trinidad, and, of course, since I have already mentioned it, we had the almost complete legal history of St Helena. 

There is a complete list of the papers and authors on the conference website, at . There may be a forthcoming volume of some of the papers, and there is talk of a repeat in 2014 or 2015.

It should be added as a final note that the organisation was superb, with the National University of Singapore responsible for that.

Jim Phillips


Wednesday, August 15, 2012

See Legal History Blog Post on JCPC and the Empire

I don't usually duplicate or link to posts from the Legal History Blog, even if they relate to Canada or Canadians in some way or because I assume that most if not all readers of this blog subscribe to that one as well (and if you don't you should--it's wonderful). But I think this post  is worth drawing attention to, as the article has great significance for Canadian legal historians right across the board.

Wednesday, August 8, 2012

MacDonald and Hudson on Genocide and Indian Residential Schools

In the June 2012 issue of the Canadian Journal of Political Science, an intriguing, if presentist, interrogation of the legal meaning(s) of the historic collective abuse of first nations students in residential schools. David B. MacDonald of the University of Guelph and Graham Hudson of Ryerson University
ask the following questions. Did Canada commit genocide against Aboriginal peoples by attempting to forcibly assimilate them in residential schools? How does the UN Genocide Convention help interpret genocide claims? If not genocide, what other descriptors are more appropriate? Our position might be described as “fence sitting”: whether genocide was committed cannot be definitively settled at this time. This has to do with polyvalent interpretations of the term, coupled with the growing body of evidence the TRC is building up. We favour using the term cultural genocide as a “ground floor” and a means to legally and morally interpret the IRS system. (From the abstract)