Newspaper article The Canadian Press

Is Law a Social Science? Lessons from a Canadian Law School

Newspaper article The Canadian Press

Is Law a Social Science? Lessons from a Canadian Law School

Article excerpt

Is law a social science? Lessons from a Canadian law school

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This article was originally published on The Conversation, an independent and nonprofit source of news, analysis and commentary from academic experts. Disclosure information is available on the original site.

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Author: Joshua Krook, Doctoral Candidate in Law, University of Adelaide

From their very first lectures, law students are told not to equate legal ethics with morality, to ignore emotional responses to cases and to ignore any idea of reforming the law.

Instead, they are taught legal positivism or 'pure law'. Pure law is the teaching of law without the 'baggage' of the social sciences: without history, politics, philosophy, morality or ethics.

Commonly, law students are taught via the case method, a method of learning the law in cases, before applying it to new set of factual scenarios. Students can only question the law by reference to prior law. Never is the end point, or the original conception of law questioned, in terms of its derivation from society, politics or religion.

To question the end point or original conception of the law in a law school today will result in students losing marks, if not outright failing an exam. This occurs even if a law is, on its face, fundamentally unjust. Saying as much is simply beyond the scope of the curriculum.

Over the years, many law academics have attempted to remedy this, with varying levels of success. The least recognized and perhaps the most ambitious was the first dean of the University of Toronto Law School, W.P.M. Kennedy.

Using law to address political problems

In 1934, Kennedy proposed a radically different vision of legal education. Instead of ignoring the social sciences, Kennedy wanted to teach law as a social science. He aimed to teach law as a fundamental tool to structure society, to correct political problems and to serve the needs of the people. In other words, he wanted law to be used as a form of "social engineering."

Without law, there would be anarchy, he and others believed. With law, society is given structure. A proper study of law, in Kennedy's view, would therefore include a study of how society is structured (politics), why it is structured that way (philosophy), how it came to be structured that way (history) and the effect of that structure on society (enforcement).

The traditional teaching of law, via the case method, simply was not enough. Quoting Britain's Lord Chancellor, Richard Haldane, a member of the judicial committee of the Privy Council in Canada, Kennedy argued:

"The mere practical lawyer today, however able, is not enough... Law joins hands as never before with problems in political science, problems in the technique of administration. We must turn out graduates in law with a courage to criticise what is accepted, to construct what is necessary for new situations, new developments and new duties both at home and abroad. …

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