Mohr, J. W.

English

York University, Osgoode Hall Law School

Osgoode Hall Law JournalVolume 12, Number 2 (October 1974) Article 9Comment: [Law Reform Needs Reform]J. W. Mohrmohr@fake.osgoode.yorku.caFollow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohljCommentaryThis Commentary is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion inOsgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons.Citation InformationMohr, J. W.. "Comment: [Law Reform Needs Reform]." Osgoode Hall Law Journal 12.2 (1974) : 437-439.http://digitalcommons.osgoode.yorku.ca/ohlj/vol12/iss2/9COMMENTBy J. W. MoHray :It is a pleasure to comment on Professor Lyon's article because ittouches in so many ways the very experience of attempting to do law reform.I should admit at the outset that I did have the privilege to read a previousdraft and to observe Professor Lyon putting into practice what he preaches;and preach he does. I should also admit that the article has been read anddiscussed at our Commission, and some colleagues were kind enough to giveme written comments so that I can rely at least to some extent on a collectiveexperience. In fact, the Second Annual Report of the Law Reform Com-mission of Canada shows that the strategy of law reform has been very muchin our minds for some time.This introductory digression should already establish in its own waythe importance of Professor Lyon's concern. Although there is, of course, aplethora of articles offering grand and not so grand ideas of what the lawshould be, do and accomplish, relatively little has been written on how thisis to be done. Professor Lyon has tackled at least some of the naive assump-tions that are involved in transforming ideas into reality. Everyone joining alaw reform commission (or making suggestions) seems to know exactly whatand in which direction the law ought to be reformed. The frustrating andmaddening experience is to find out that all these individual certainties differfrom person to person and are as often as not contradictory. One can onlyachieve early reconciliation between these contentions at a level at whichthe reconciliation is meaningless to everyone concerned. Such solutions, ofcourse, merely reinforce the original problem.Professor Lyon tends to ascribe this kind of process to the legal mind.Far be it from me to defend this legal mind, but in all fairness it has to besaid that the legal mind is not just something which is in the heads of lawyers(although it finds a fertile soil there) but lies in the laws and legal institu-tions as well as in the public mind. Even Parliament (although it has to beadmitted that lawyers are over-represented there) seems to keep a tally andmeasures its productivity by the number of laws it passes in a given session.Law reform that wishes to reform itself has to do so on the basis of,and over against, the conceptual foundation which created it as an institu-tional activity. Professor Lyon points out the basic similarity between all lawreform statutes which create commissions. This similarity is not just a matterof copying but of a shared historical model - the English law reform move-ments of the nineteenth century. It is becoming clear that this model, at leastas we seem to understand it, is largely inappropriate today. Yet to be fair,this emerging clarification is a function of having tried, and indeed ProfessorLyon could not have written his article in the same knowledgeable way if hehad not participated in a commission.*Commissioner, Law Reform Commission of CanadaOSGOODE HALL LAW JOURNALThis experience may also explain his aversion to having the productivityof a commission measured by the reports it issues. Again, one could notagree more; but one must not forget that in the very writing of his articleProfessor Lyon relies on this form of communication - it is a report. Un-doubtedly he would defend himself by saying that this is not his only activity,with which everybody who knows him would agree. Nevertheless, he musthave thought it important to share his thoughts in written form (and so doI or I would not take the trouble to comment).This raises a further point - Professor Lyon's aversion to legislation.One must again agree wholeheartedly that the premature rush to the drafts-man is the furor therapeuticus of the legal mind in the same way as categoriz-ing, naming and labelling is the magic solution for other minds. But againone must not overlook that he himself makes extensive reference to a pieceof legislation - the Canadian Bill of Rights.These are just examples to show that Professor Lyon's thrust and im-patience have to be seen in context and in a dialectic relationship with deeplyentrenched patterns of thought and behaviour. The bias and even one-sidedness that emerges from this struggle is understandable and - to mymind - is the best guide for setting priorities. What I find much harder toaccept is his constant reference to limited resources as creating a need forsetting priorities. He claims right at the beginning of his article that "sub-stantial amounts of public money (are) being spent on law reform in Can-ada", and although it is of course laudable to have proper consideration forthe public purse, the word substantial is relative. One can easily replace it byinsignificant, if one takes the perspective that ours is a government by law(no industry would get away with spending so little on its major tools) andif we consider, in addition, the absence of almost any expenditures in thisarea for almost a century. As he acknowledges later on, there are some reallimitations in any case as to how much money can be meaningfully spent inthis area.However, the question of resources raises another problem which be-comes even more crucial as one attempts to follow Professor Lyon's prescrip-tions for law reform - the absence of both knowledge and knowledgeablepersonnel in the areas he pushes to the forefront. It has always been a puzzle,to me, and still is, how a profession can exist and still make claims of being"learned" when it encompasses hardly a graduate program worth mentioningand hardly an institute devoting itself to those basic questions of theory andpractice which could give bodies such as law reform commissions their basictools.I have no problem accepting Professor Lyon's demand, (and I hopethat this is also the real public demand) that law reform commissions shouldchange the law in practice. We have to be aware, however, that the meth-odologies that Professor Lyon proposes sound deceptively simple but areindeed the most difficult ones, since, as he recognizes, they depend on achange of mind. What is easy right now is the rush towards legislation in theaccustomed pattern. Even new drafting would depend on a change of mind -the mind that understands what language is about. Changing a mind pre-(VOL. 12, No. 2Commentsupposes a mind and the problem with many of the things that ProfessorLyon objects to is that they are mindless.It cannot be stressed enough in a forum such as this, a university lawjournal, that the heart of law reform, as Professor Lyon says, is "essentiallyan educational process, having as its prime objective the release and directionof human potential". If one looks at the structure and curriculum of a lawschool one finds very quickly that many of the needs and pressure pointswhich arise in law reform have no place there. The rest of the universitytends to be rather silent about law as a whole and it is obviously not a sub-ject important enough for our high schools; how can it compete with thetemperature curve for Upper Volta?I am not speaking of the law of experts; this kind of law is truly over-stated and has undue dominance. I am speaking of the law which I thinkProfessor Lyon means when he speaks of values and principles. The de-velopment of policy; problems in the legal order (rather than the solutionof sterile problems of legal doctrine); injustices felt by citizens (rather thanlawyers' dissatisfaction with the law); questions of what are facts and whosefacts they are; questions of priorities and implementation - these are allissues which cannot be left to the expert. As a result, they all require apublic sufficiently educated and conscious to be able to see and to define theirproblems in these ways. And this public at the present time includes the pro-fession; because most practitioners, law teachers as well as law students,would be uncomfortable and embarrassed if one told them with ProfessorLyon's words that their venture has "as its prime objective the release anddirection of human potential". They would tend to talk about training, andtraining tends to create a stance antithetical to reform because it manipulatesthe mind but does not involve it. A mind, however, that has not been in-volved in its own formation is hard to change, because it cannot re-formitself on the basis of training; it can only do so on the basis of the kind ofeducation that Professor Lyon proposes.1974]

Comment: [Law Reform Needs Reform]

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Comment: [Law Reform Needs Reform]

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