On the Relationship of Law and Learning to Law and
Learning
Mark Weisberg*
The Arthurs Report on Law and Learning
presents a vision of what legal scholarship
should be and attempts to compare the work
of Canadian legal scholars to that vision. The
Report concludes that legal scholarship in
Canada falls woefully short of its vision and
offers recommendations to improve schol-
arly performance. This essay criticizes the vi-
sion of scholarship in the Report, arguing that
it misunderstands the nature of scholarship
and misjudges the impact of its criticism on
individual scholars. It offers and attempts to
justify an alternate vision.
Le rapport sur Le droit et le savoir pr6sente
une vision de ce que la recherche juridique
devrait 8tre et essaie de comparer cette vision
aux travaux des juristes canadiens. Le rap-
port conclut que la recherche juridique an
Canada cadre mal avec cette vision et for-
mule des recommendations visant A am6lio-
rer le rendement scientifique. L’auteur critique
la vision pr6sent6e par le rapport, all6guant
qu’il se mepr6nd sur la nature de la recherche
et 6value mal l’effet de ses critiques sur les
juristes. Cet essai propose ainsi une solution
de rechange.
Synopsis
The Definition of Research
The Classification of Research
The Practice of Research
The Promotion and Encouragement of Research
*Professor of Law, Queen’s University. Thanks to Tom Asplund, Bryan Schwartz, Dan
Soberman, Don Stuart, and John Whyte for encouragement and helpful conversation.
REVUE DE DROIT DE McGILL
[Vol. 29
Each of us has experienced parental criticism and disapproval. When
we are young, we equate our parents’ standards with the world’s. To deviate
means to disturb the natural order. As we mature, we learn relativity; we
observe other standards, other person’s failures, our parents’ fallibility. We
contextualize their criticism, measuring ourselves not simply against their
words but against their conduct and the conduct of others, and measuring
their words against other words. We continue to care about the source of
the criticism and its truth, but we understand how much turns on its timing,
on its tone, on its quantity.
The Report to the Social Sciences and Humanities Research Council
of Canada by the Consultative Group on Research and Education in Law,1
dubbed the Arthurs Report by the Minister of Justice,2 is a critical document.
Its principal author is a senior, well-known and well-respected legal scholar
and teacher, a former law dean.3 For members of the community about
whom it speaks and to whom it in part is addressed, the document is parental
criticism. The question it poses is: how to take it? My answer is: with partial
acceptance, partial resistance, considerable irritation, and, predominantly,
with sadness.
The document is titled Law and Learning. More accurate would be
The Sorry State of Legal Research in Canada: Its Cause and Its Cure. The
actual title not only is bland; it is misleading. Although describing the struc-
ture of legal education in Canada as a background for the portrait of law
professors as researchers, the Report shows little interest in learning. It
addresses neither the way things are learned in law schools nor the links
between research and personal knowledge or between research and teaching.
Some sections of the Report even claim a negative link between research
and teaching, not only by the usual argument that doing one fills time that
might have been devoted to the other, but also in the almost incredible
assertion that law teachers find in the subjects they teach no stimulation,
no incentives to probe beyond the minimum necessary to conduct a class.4
What does interest the author is research, the definition and classifi-
cation of research, the practice of research, and the means for promoting
and encouraging more research and more significant research.
‘Consultative Group on Research and Education in Law, Law and Learning [:] Report to
the Social Sciences and Humanities Research Council of Canada (1983).
2Speech to the Canadian Association of Law Teachers, (2 June 1983) [unpublished].
3Harry Arthurs, Professor of Law and former Dean of Law, Osgoode Hall Law School.
4″[Law professors] seem hard put to it to find intellectual inspiration in the legal curriculum.”
Law and Learning, supra, note 1, 88.
1983]
NOTES
I.
Definition
We are interested in articles, books, reports and studies that together constitute a body
of literature available in the public domain with a pertinence beyond the particular mo-
ment at which it was preparedS
According to the Report research must produce writing; writing must exist
in the public domain (read: it must be published); and it must have more
than momentary pertinence. Research is defined by its product, its status
in the world. This definition is not uncommon, and given the Report’s vision
of teaching and research as bifurcated and unrelated, it is not surprising.
Its outside-in, instrumentalist structure echoes in the other sections of the
report.
Another approach is possible; call it inside-out. It would begin with
the teacher, locate her in her world, address her obligations or role, explore
the significance of research for her as she develops in that role, and examine
its significance for her students. Consider Harold Laski.
Every teacher .. .has three great obligations. He must continually research, he must keep
a fresh mind, and he must know his students not as a shapeless mass seen from a dais,
but as individuals whom, if he can, he will cultivate as friends. These are grim conditions,
physically exacting and intellectually wearing. By continuous research I do not mean
constant publication. The modem tendency to judge men by their volume of published
output is, I believe, responsible for not a little of inadequate teaching standard. It is a
facile test of promotion naturally welcome to busy administrators; it is not the slightest
proof of intellectual inadequacy. … By research I mean in part a devotion to the redxa-
mination of the ultimate principles of a subject, and also an endeavor to extend their
boundaries by solution of the problems to which they give rise…. In this sense, the
teacher’s real task is himself to embark on the investigation of a really big theme, and
use the new insight that research conveys to illuminate the whole subject he expounds.6
Arthurs and Laski share concern for the big theme; they share little
else. The Report takes as given the obligation to research and makes little
effort to articulate its source. To the extent that it accepts research as part
of a teacher’s job description and attempts to classify research activity wi-
thout understanding its source, the Report commits the primary sin for
which it castigates other academics. Research should not be designed “to
collect and organize.. .data, . . .to explicate and offer exegesis on authori-
tative… sources”‘ 7 but should “make underlying assumptions about [re-
search] explicit, coherent and sufficiently detailed to provide us with hypotheses
that we can use to evaluate past, present or future events”.8 To the extent
it does not accept job description as authoritative, the Report reveals a
5lbid., 65.
6H. Laski, The Dangers of Obedience (New York: Harper and Brothers, 1930) 112-3.
7Law and Learning, supra, note 1, 65.
81bid., 69-70.
Mc GILL LAW JOURNAL
[Vol. 29
particular view of the source of the obligation to research. It is a social
obligation, and its end is not, as is occasionally protested, knowledge for
its own sake, but social change. We should do it for its impact on the social
world. For Laski the obligation to research is a teacher’s obligation. Research
produces better teaching. Understanding what teachers do, what produces
knowledge, why universities should not close their doors tomorrow is the
key to defining and classifying research.
In a world of increasing pressure on academics from university ad-
ministrators, Laski’s approach promises more than the one in the Report.
It offers a teacher a method for understanding herself in her community
and for sorting legitimate from illegitimate in administrators’ demands.
When demands to do more, to do something else (research, not teach-
ing; different research), seem to issue from above, seem unrelated to an
individual’s role in her community and tied to financial pressures or ad-
ministrative fiat, resistance, anger, incomprehension are the likely responses.
If university teachers can perceive research as integrated with their other
activities, as, say, essential to finding out how much they do and do not
know, to extending their grasp of a subject and hence their students’ grasp,
as part of their personal and professional development within their insti-
tutions, they might be encouraged to take some risks to develop. If a scholar
is responding to demands that are perceived as arbitrary and as based on
the power to withhold salary or other perquisites, she will be a grudging
minimalist. If she is responding to encouragement to grow in her job, she
might be more imaginative, more daring.
The Report’s approach to research provides a weapon for interested
non-academics to add to their arsenals for fighting offending academics. It
offers nothing to encourage academics to understand the importance and
centrality of research in their lives. It reinforces the wedge between admin-
istrator and teacher, between teacher and researcher, between community
and university. Failing to link research and teaching, it ensures negative
response.
H. Classification
The Report offers a four part, hierarchical classification of research.
From lowest to highest it identifies: 1) conventional texts and articles; 2)
legal theory; 3) law reform research; 4) fundamental research. The language
of the classification gives it away. Disapproved is what is “conventional”, 9
“predictable”,’ 0 what is not new. Approved is what produces “reform”,”
9Ibid., 66.
10lbid.
I’Ibid.
19831
NOTES
what shows law’s “causes and effects”. 12 Understanding is treated as an
instrument for change, a valuable instrument, but nevertheless an instru-
ment. Law, too, is an instrument, and the highest level research investigates
its instrumental function. Here are the examples of fundamental research:
Empirical inquiries concerning the actual effect of bail procedures, the actual distribution
of losses from industrial and traffic accidents, the actual practice of courts issuing labour
injunctions have all helped us to reevaluate the efficacy and fairness of important areas
of law. While immersion in the conventional materials of the law might (or might not)
have generated intuitive reactions to those issues, it would not have left us as well informed
as the empirical studies that were undertaken. Moreover, such immersion would not have
placed debate over long-established legal rules and procedures on a footing that permits
us to consider their social utility rather than their internal logic or symbolic significance. 13
When law is viewed as an instrument, fundamental research probes its social
utility. When social utility matters, empirical studies dominate. The deepest
law study becomes, not the study of law, but the study of “law and”’14
(sociology, economics, whatever you like).
that of legal entitlement – we have
As we begin to explore all questions save the first –
to make our assumptions more and more explicit, and draw more and more upon the
insights of other disciplines. As this process continues, legal research slides along the
spectrum from legal theory to what we have called fundamental research. But it will be
noticed that in so doing it is pulled loose from its roots in conventional legal materials,
which become increasingly objectified, increasingly treated as phenomena to be investi-
gated rather than as the embodiment of ultimate (if not obvious) truths.15
As classification this is nonsense; as prescription it is worse. It is non-
sense to suggest that research in law is less fundamental than research about
law, that detached observation consistently should be preferred to what
George Fletcher calls “committed argument”.16 It is nonsense to suggest
that research that helps “law respond to a changing society”‘ 17 is funda-
mental, while “exegesis upon authoritative legal sources”18 is trivial. Most
of us would have thought Northrop Frye knows something about and prac-
tices fundamental research.
The value of exegesis as research doesn’t depend upon belief in the
authority of a text such as the Bible. We can accept ultimate skepticism
toward any legal text, case or statute, and understand as fundamental the
12lbid., 69.
13lbid.
14I have taken the phrase “law and” from Arthur Leff’s delightful article of that name: Leff,
Law and (1978) 87 Yale L.J. 989. This article offers extensive criticism of the view of fun-
damental research proposed in this report.
15Law and Learning, supra, note 1, 68-69.
16Fletcher, Two Modes of Legal Thought (1981) 90 Yale L.J. 970, 1003.
7Law and Learning, supra, note 1, 69.
18Ibid., 65.
REVUE DE DROIT DE McGILL
[Vol. 29
effort to comprehend it, to justify it, to provide its structure. Doing so
requires refusing the Report’s dichotomy between law as gospel, which it
rejects, and law as impact, which it accepts. The Report suggests, correctly,
that we should reject the vision of law as an autonomous system to be
studied in isolation from its connection with the world. But in its insistence
on the primacy of “law and” research it offers the opposite vision: law as
totally merged with the world. Lost in this clash of opposites is any sense
of law as a partially autonomous system. 19 Lost is any sense of the value,
say, of studying law as a language, of seeing what it includes of other lan-
guages and what it leaves out, of discovering its textures, of investigating
how it enables a person to address other individuals in the world.20 Lost is
any sense of the value of attempting, before rejecting doctrine, to provide
a coherent justification for it, to link it to other doctrines, to see it as part
of a system of meaning created over time by cooperative human effort. Lost
is any sense of the value of taking seriously the common law process.
The value of this work is lost, not because it goes totally unrecognized
in the Report, but because it is denigrated by label and subordinated to
other types of work. Instead of examining types of research to expose the
depths to which each could go, the Report offers a typology of worth. As a
result, individuals attentive to the Report, instead of being shown how their
various chosen paths might be enriched, are prodded to move like lemmings
in a single direction. Those unwilling to march justifiably may be left behind.
Finally, this classification is nonsense, because it asserts the pre-em-
inence of the objectification of the material of the law over its treatment as
an embodiment of lasting truth. One need not be committed to the view
that law embodies truth simply because it is law or because it issues from
an authoritative source to see the value of the effort to construct the truth
embedded in a series of decisions, a statute, a constitution. As Lon Fuller
has shown,2′ good legal exegesis can be very good indeed.
m. Practice
From this perspective appear the best and the worst of the Report. The
authors suggest that law professors suffer from low aspirations, that they
risk little in their research and writing. We are urged to aim higher, to
attempt more.
The Report is right. Legal education too often is training in excess
caution. Legal language and legal advocacy can facilitate hiding, can help
19See R. Dworkin, Taking Rights Seriously (1977).
2OSee J. White, The Legal Imagination (1973).
21See, for example, L. Fuller, Legal Fictions (1967) and Fuller, Consideration and Form
(1941) 41 Colum. L. Rev. 794.
1983]
NOTES
one convince oneself that personal and professional lives are and should be
totally separate. Writing and research, on the other hand, are intensely per-
sonal; confronting and exposing one’s limitations of knowledge and infel-
icities of phrase can be harrowing. No wonder most of us choose safe routes
most of the time. We ought more often to face this collective and individual
deficiency, and we need to find means to encourage ourselves to attempt
more fundamental work. I already have suggested that in moving us in that
direction the Report unfortunately prefers criticism to encouragement, and
I will return to this theme in the last section. Here I have two other complaints.
The Report implies that in their narrowness, conventionality, and lack
of ambition law professors differ from the rest of the academic community
in Canada. The Report offers no evidence for that suggestion, and I doubt
its existence. After fourteen years in the same university community, after
having seen the work of colleagues and the work of other members of the
community, after having read legal periodicals and other academic peri-
odicals, after having been faculty advisor to a law journal and a member
of the editorial board of a non-legal journal, I think the quality of work on
my own faculty at a minimum no worse than the quality of work in the
rest of the community in which it functions.
If my impressionistic view is shared, the criticism of Canadian legal
scholars ought to be clarified or redirected. If the Report wants to accuse
legal academics of falling below an achieved Canadian standard, it ought
to be more careful with its evidence. If, comparisons aside, it wants to exhort
us to improve our record, it ought to say so. It is one thing to suggest to a
community it ought to aspire to greatness; it is another matter to tell a
member of a community, and its Principal and Deans, that within that
community the member does not pass muster.
While the Report measures the work of law faculties against real or
imagined standards, it does not address the progress of those faculties. Many
law schools are new in Canada; they have had to develop their scholarly
tradition in the last twenty-five years as they contended with the difficulties
of becoming established. An interesting comparison, omitted in the Report,
would have been the quantity and quality of work now done to work done
ten years ago.
Finally, any measure of performance ought to include a realistic as-
sessment of possible performance. In The Structure of Scientific Revolutions
Thomas Kuhn shows how much of the research done in science necessarily
Mc GILL LAW JOURNAL
[Vol. 29
requires resolving the puzzles identified by fundamental research (paradigm-
identifying research). 22 He identifies gap-filling, problem-solving, answer-
providing as valuable work, necessary for testing and refining a paradigm.
Even accepting the Report’s classification, must one accept its idea that
there could be a significant shift of work from necessary problem- or puzzle-
solving to fundamental research? Can one accept that idea without some
argument how legal research differs from scientific research?
IV.
Promotion and Encouragement
After the body of the Report, its recommendations are the calm after
the storm. Aside from the dubious propositions that more education pro-
duces better scholarship, that the addition of disciplines produces better
scholarship, and that research centres produce better scholarship and more
learning, many of the recommendations are positive and helpful.23 Some,
particularly those urging more explicit academic streaming in law schools,
more independence from the wishes of the practicing bar, and significant
curricular reform, are interesting and challenging, worthy of debate. In tone
and content they stand in sharp contrast to what precedes them. The “plu-
rality of educational strategies”,2 4 urged in the section on legal education,
and the responsiveness to individuals’ “own sense of intellectual priori-
ties”,25 urged in the section on promotion of research, contradict the rest
of the Report. What we discover is a glaring distinction between what in
conclusion the Report tells us to do and how it tells us to do it. As I have
suggested, these contradictions ensure an academic response at best of be-
wilderment, at worst of discouragement and resentment or indifference.
Some of this response arises from the continual side-of-the-mouth,
gentleman-protest-too-much style of argument. The body of the Report is
fulil of disclaimers of competence, or scope, or ambition, followed by at-
tempts to describe, evaluate, comprehend exactly those areas in which com-
petence is disclaimed. These, however, are minor irritations.
The Arthurs Report disappoints, because it provides neither a model
for improved research nor a mechanism to encourage academics to find
their own models. It disappoints, because it ignores the personal dimension
of research activity, because it treats research as commanded from above
or required by others instead of viewing it as a source of enrichment or
22T. Kuhn, The Structure of Scientific Revolutions, 2nd ed. (Chicago: University of Chicago
Press, 1970) 25-42.
23Slayton, rev. of Law and Learning, (1983) U. of T.L.J. 348.
24Law and Learning, supra, note 1, 155.
25Ibid., 157.
