Monday, April 16, 2007

Power-Knowledge: Legal Academics and the Charter

In my previous post, I warned the Chief Justice --who is promoting the idea of educating Canadians about their constitution -- that there may be an inverse relationship between knowledge of the Charter and support for it. Andy makes this interesting comment in response:

My view has always been that the Charter was cooked up under pressure from legal academics who were envious of the starring role their colleagues played in U.S. political discourse. Having started law school in 1987, just as the first Supreme Court Charter decisions were being handed down (I can well remember the shrieks of joy when our crim prof walked into class bearing glad tidings about R v Morgentaler), I can attest to the palpable sense of excitement among the faculty that they could now zip through the legalistic "federalism/BNA Act" parts of the constitutional law course in a couple of months while spending the remaining six months on U.S. style Charter casuistry.

So are academic experts on constitutional law the skeptics or the vanguard of the "Court party"? Well, it depends.

Love it or hate it, it's certainly true that the Charter makes Canadian constitutional law courses more interesting. Pretty much anyone would rather talk about abortion and euthanasia than egg marketing boards and the taxation of potash. To the extent a legal academic thinks in terms of power and status outside the ivory tower, the Charter is a pretty tempting object of esteem. Mandel reports that a prominent feminist organization actually lobbied Peter Hogg about the contents of his chapter on equality rights in his ConLaw textbook. But then it is also more fun to attack judicial decisions than celebrate them. So where do people end up?

Legal academics are a curiously hybrid sub-profession. Traditionally, they considered themselves part of the legal profession, and, to the extent the profession likes them, they continue to have more access to power and occasional billing opportunities than most SSH academics could imagine. However, over time, status in the legal academic world has increasingly become based on the same considerations that exist in the rest of the university, rather than the kind of things the profession values. That's led to a lot of tension, and duplication of legal education by the profession.

The result is that legal academics are divided between those comfortable with Bay Street and Wellington Street, and those who are engaged in a different, more academic, status game. The former dominate the University of Toronto law school; the latter are a bit more common at Osgoode.

My own experience at U of T came half a decade after Andy's. I can confirm that all the professors there were plus royaliste que le roi in their support of aggressive judicial review under the Charter. They only differed in how much plus royaliste they were. Those most likely to actually become judges could understand why the Red Nine did not invalidate every law that was presented before them; the others not so much.

By the time I was there, the mood was a bit sourer than Andy recounts. The glory days of Singh and Morgentaler had passed -- we were clearly in the age of bronze. I have no idea what the mood is like now.

Postcript: In the course of researching this post, I found out that the University of Toronto law faculty have a blog. Unfortunately, it sucks.

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