Vol. 14 No. 3 (March 2004)
PEOPLE AND PLACE: HISTORICAL INFLUENCES ON LEGAL CULTURE,
by Jonathan Swainger and Constance Backhouse (editors). Vancouver, BC: The
UBC Press 2004. 256 pp. Cloth $85.00. ISBN: 0-7748-1032-7. Paper
$29.95. ISBN 0-7748-1033-5.
Reviewed by Mark Rush, Department of Politics, Washington
and Lee University. Email:
rushm@wlu.edu .
PEOPLE AND PLACE is a collection of short biographical
essays focused principally on Canada and spanning the 18th, 19th and 20th
centuries. The essays were
delivered as a day-long colloquium that celebrated the career and influence
of Professor Louis Knafla (University of Calgary) and includes essays by
four of Knafla's students.
The book is a highly readable and enjoyable series of case
studies and biographies. However, the contributions are of varying quality
and really do not form one, coherent volume.
Clearly, insofar as the essays are intended essentially as a festschrift, they undoubtedly reflect the contributors' desire
to provide a “thick description” of characters who played important
roles in the development of diverse legal cultures and systems throughout
Canadian (and Oregonian) history. In this respect, one comes away from this
volume with a great sense of appreciation for the impact that Knafla obviously
had on his students and the admiration and love that they felt for him.
However, if one seeks a coherent analysis of the intersection
of people, place and legal culture, this volume will disappoint.
It is less than the sum of its parts.
This is due in part to the varying quality of the essays. In some cases, the essays are not much more than quick chronologies
of the lives of different intriguing characters from Canadian legal history.
The editors indicate that the stories of characters such as William
Augustus Miles, James MacLeod or Janet Kathleen Gilley, demonstrate how
particular people either effected legal change or how their lives were,
in some ways, metaphorical manifestations of the broader interaction between
law and social change. But, without a unifying contextual framework,
the chapters in the book do not weave such characters' stories into a clear,
coherent lesson. Thus, the
contribution by David Phillips, for example (“William Augustus Miles (1796-1851):
Crime, Policing and Moral Entrepreneurship in England and Australia”), is,
as the author notes, merely a “summary of a book by the same name.”
This chapter is little more than a quick chronology of Miles who,
suspected of being the bastard son of George IV, led a checkered career
in law enforcement in Sydney and the study of delinquency and incarceration
in England.
Brockman and Chunn's chapter on Janet Gilley, the fifteenth
woman called to the bar in British Columbia, is a similarly brief chronology
of Gilley's life that never really demonstrates what the authors claim to
do: “tell us about individuals and communities and their relationship to
legal culture” (p.164). Doubtless,
a well-told story of Gilley's pursuing a legal career as a woman in early
20th century British Columbia might demonstrate to modern readers how the
deck was stacked against such pioneering women.
But, this essay does not illuminate that subject. In the end, we are told that we don't
know why she became a lawyer or what sort of lawyer she was. Perhaps there is a great deal to Gilley's
story, but it is not presented in this essay.
In contrast, Charleen Smith's “Boomtown Brothels in the
Kootenays, 1895-1905” nicely demonstrates not only how the law of prostitution
evolved but also how the law itself was used essentially to perpetuate a
protection racket in which brothel owners would pay monthly “fines” to stay
in business. The inequity of
treatment of streetwalkers as opposed to brothel workers and owners that
developed under this system clearly demonstrates how the law can be used
as an instrument of social control and, in some cases, discrimination.
In a similar vein, Constance Backhouse's “Don't You
Bully Me…Justice I Want if There is Justice to be Had” offers a piercing
and timeless depiction of the suffering that rape victims must endure to
seek justice. While Backhouse's essay addresses the
rape of Mary Ann Burton (London, Ontario, 1907), the depiction of how defense
lawyers sought not only to blame Barton for the rape but to impugn her character
in the process echoes the ordeal so many women have suffered when seeking
to bring their assailants to justice.
Besides the celebration of Knafla, the theme that seems
to unify most of the essays is an appreciation of how social change alters
legal norms and the manner in which they are manifested in the day to day
administration of the law. Under
the right circumstances the arrival of a particularly commanding character
(such as a constable or judge) or vast numbers of migrants can change the
course of legal development and administration.
In “Murdered Women and Mythic Villains: The Criminal Case
and the Imaginary Crinal in the Canadian West, 1886-1930,” Lesley Erickson
demonstrates how the social strains arising from the arrival of great numbers
of migrants can also result in the social construction of new classes of
villains and myths that perpetuate divisions and discrimination between
established and newly arrived populations. Similarly, Jonathan Swainger's “Police Culture in British Columbia
and Ordinary Duty in the Peace River Country, 1910-39” chronicles the impact
of population growth and how migration pressures caused the development
and change in the culture of policing in that part of British Columbia. One gets a similar sense of how law responds
to evolving social pressures in an essay by Philips, Gardner and DeLuca,
“Incarcerating Holiness: Religious Enthusiasm and the Law in Oregon, 1904,”
which describes the persecution of the Creffield “Holiness movement”
Sect in Corvallis, Oregon. Because of its (then) radical approach
to materialism, the role of women and the promotion of loyalty to the sect
over loyalty to one's family, the sect elicited backlash from family members
and friends who “lost” siblings or children to the sect.
The essays range from emphasis on biography and chronology without much analysis to penetrating, readable accounts of law and social change. Thus, while providing thoughtful vignettes of intriguing characters from and episodes of Canadian legal history, PEOPLE AND PLACES falls short of offering the analysis of “historical influences on legal culture” noted in the book's subtitle. It is, unquestionably an enjoyable readãone from which I would draw in a course on law and society. But it remains more a collection of essays than a coherent discussion of legal development and social change.
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Copyright 2004 by the author, Mark Rush