Skip to content

Tradition in form, change in substance

“You''re a strange dude, Ian.”

Such was a compliment once paid to me by a colleague. I decided to interpret it as a compliment, at any rate. Perhaps I was fooling myself, but I took “dude” as a sign of warmth — it at least was warmer than some of the things I’ve been called over the years as a dean. Regardless, what my interlocutor was getting at, she explained, was that I seemed a contradiction in terms.

On one hand, I was driving an agenda of curricular and institutional change. I was serving on the Canadian Bar Association’s Legal Futures Initiative. I was known to be an advocate for multiculturalism and for the special needs community. On the other hand, I had just been awarded the Silver Badge of Service by the Monarchist League of Canada (an unusual thing for someone who had never actually been a member), and I had been one of the people who worked to have the title “Royal” restored to Canada’s navy. I had also been involved in the reintroduction of legal history as a compulsory element in no fewer than three different law schools. So, to my colleague, I seemed a contradiction in terms. I didn’t fit easily in the conventional political taxonomy.

Mea culpa.

Progressives — and most Canadian law professors would, I think, self-identify at that end of the spectrum — tend not to be big fans of tradition and ceremony. To them, tradition is at best something appropriate for sending up in Rumpole of the Bailey or a Monty Python sketch. At worst, it serves as a cloak for the perpetuation of oppression and injustice. In this view, tradition is antithetical to social change, and social change is the lynchpin of progress. So, what we need to do is strip the system of its old-fashioned clothing as one step on the path to modernization and social justice.

The practising arm of the profession, in contrast, is perhaps more inclined to romanticize and revere the traditions of the bar. I remember once having a drink with a group of Ontario lawyers — all in their 40s at the time, so they were hardly part of the grey hair brigade — who were bemoaning the abolition of the old system of Assizes in the 1990s. The way they spoke sounded positively Dickensian, but that didn’t obscure the fact that they were animated by genuine passion about the loss of something that they considered integral to the impartial administration of justice and to the unity of the profession. For me, I see wisdom in both positions. This may sound like a cop-out to those who prefer ideological purity in their deans, but the longer I do this job, the more I find myself holding the view that both points of view are right and both are wrong. To me, we need guns and butter.

The fact is that, as a common law lawyer, I don’t see how one can honestly reject the value of tradition — at least not if one is genuine in their belief in the common law — for the common law system is built upon a foundation of tradition. After all, what else is the doctrine of stare decisis other than a statement of systemic respect for tradition? Moreover, our system of responsible government is also based on tradition — the tradition that when an administration loses the confidence of the House, it will resign. Some might even argue that tradition is the underpinning of the whole idea of constitutional government; that the reason we say that the constitution trumps ordinary law, and that it is the judiciary that has the final say in determining what the constitution means, is because it is an ancient principle of common law (which is to say tradition) to do so.

Put another way, tradition is the glue that holds the whole mess together. It is the cornerstone of our free and democratic way of life. It is what allows disputes — no matter how heated or personal — to be resolved without violence. Absent a police state, tradition is the key to the survival of the rule of law. It keeps us closer to utopia than dystopia. Indeed, without respect for tradition, it is hard to imagine how either government or litigation as we know them would work. It may seem silly that the largest law society in the country is named after a colony that ceased to exist 175 years ago or that as a profession we dress as we do because we are still in mourning for Queen Anne, who died in 1714. But things like this are a pretty small price to pay for the Canadian version of the rule of law.

As I have written in this space before, our goal in law schools must be to prepare students for the profession they are joining, not the one we joined. Because of the confluence of globalization, the technological revolution and commodification, our professional world is turning faster and faster. This means that we need to teach many things that would have seemed unthinkable just a few years ago.

It is a very exciting time to be working in the Canadian legal academy. Innovation is taking place at law schools across the country at a dizzying rate. New clinical programs, new international opportunities, new combined degree programs and new courses are popping up each year. What makes it even more gratifying is that, by and large, the profession is supportive. There are regular bumps in the relational road, to be sure, but the gulf of understanding between the bar and the academy seems much closer to being forded than at any other time in my own professional career.  

This is all to the good. But we mustn’t throw out the baby with the bathwater. As we engage with our changing world, and as we drive change ourselves, we cannot afford to turn our backs on the traditional aspects of our profession. Change in substance, tradition in form — that must be our motto as we go forward. The rule of law depends on it.