The Reinvention of Canadian Private Law, 1945–1995

Abstract

This talk will set forth the basic points of departure, hypotheses and methodologies of the authors in relation to the history of Canadian private law in the 50 years following the close of the Second World War. In the authors’ view, the quarter century following World War II in Canada (1945–1970) was one of intense socio-economic ferment and cultural change. In this period, especially in the decade 1965–1975, urban Canada experienced a “cultural shift,” one manifested in new patterns of work, education, income, housing, education, health care, politics and public policy, gender relations and, significantly, in the way in which individual Canadians thought of themselves as moral and legal rights-holders. The researchers further hypothesize that by the late 1960s, growing numbers of Canadians of all social strata had begun to conceptualize their personal autonomy, integrity and “rights” differently — and more robustly — than a quarter century before.

This shift, the researchers believe, had profound implications at several levels for Canada’s system of private law and private law litigation, including in the comprehension (by citizen-litigants, lawyers and judges) of conflict, injury, relational responsibility, legal entitlement and just compensation. In the period 1970–1995, Canadians were much more likely than before to interpret social experience in terms of their moral and legal rights. They were also more likely than in the previous 25 years to approach lawyers with stories of how these rights had been violated. In this period, moreover, shifts in the sociology and social geography of professional legal services made it more likely than before that lawyers would not only hear the “injury narratives” of prospective clients, but to render them as innovative legal pleadings. In turn, Canadian trial and appellate judges of the post-1970 period proved more willing than before to endorse novel private law claims, even when such claims contradicted longstanding precedent.

In fact, we hypothesize that the socio-economic and cultural shift of the quarter-century after WWII presaged a quarter-century of dramatic and multifaceted innovation and change in the litigation, adjudication and doctrinal basis of private legal rights and obligations.

Presenter biography

Dr Rande W Kostal (Oxford, DPhil, 1990) is a Professor of Law and History at Western University in London, Canada. His previous published works include Law and English Railway Capitalism 1825–1875 (OUP-Clarendon, 1994) and A Jurisprudence of Power: Victorian Empire and the Rule of Law (OUP-Clarendon, 2005) and Laying Down the Law: The American Legal Revolutions in Occupied Nazi Germany and Imperial Japan (Harvard University Press, forthcoming 2019), along with a number of articles on the socio-legal history of the United States, Canada and Britain. Professor Kostal is a member of the bar of the Province of Ontario. He resides in London, Ontario.