History of the Institute of Comparative Law

Founded in 1965, the Institute of Comparative Law reflects a commitment to comparative legal study and scholarship at McGill that finds its origins in the mid-nineteenth century, when the Faculty of Law was established.

Comparativist from the Outset: McGill Law in the 19^th Century

The first degree program in law was offered by what was then McGill College in 1848, under the Faculty of Arts; documentary evidence of the original curriculum suggests that it was “polyjural” in the sense of introducing students to a variety of legal traditions. It was Charles Dewey Day, Principal of McGill College (1853-55) and himself a lawyer and eventual judge, who oversaw the launch of an independent Faculty of Law five years later, in 1853. Day – who would go on to serve as Chancellor of the University (1864-85) – recognized Montreal as a site of intersection among multiple legal traditions. Capitalizing on this unique confluence, he sought to establish an academic program in which future leaders would be educated in the richness and diversity of legal systems, rather than purely in the “local law in force”; thus, Justinian’s Institutes, the Coutume de Paris (the civil law in force in Quebec until 1866), and Blackstone’s Commentaries together formed the basis of the B.C.L. program. At the same time, scholarship by both professors and students constituted an important feature of the Faculty of Law. 

At the turn of the nineteenth century, the comparativist focus of the Faculty was further bolstered by the appointment of Frederick Parker Walton as Dean (1897-1914). As a scholar of Roman law rather than a practising lawyer as all previous Deans had been, the Oxford-trained Walton emphasized the importance of legal history and the emerging field of comparative law – including Roman law – as tools in the formation of legal professionals. While the Faculty’s primary mandate under Walton was the training of practising lawyers, his commitment to legal science as the path to professional development resulted in a strengthening of the Faculty’s intellectual standing and reinforced its position within the University community. In his own comparative law research, Dean Walton was one of the earliest scholars to examine “mixed jurisdictions” that combined the civil and common law traditions, including both Scotland (where he was born) and Quebec. Over the course of his years at McGill, he also endeavoured to develop a methodology for the study and interpretation of Quebec’s Civil Code of Lower Canada (1866) by drawing on principles of the new German Civil Code (Bürgerliches Gesetzbuch, 1900).

A “Place of World Resort”: McGill’s Comparativist Mission in the 20^th Century

The next Dean, Robert Warden Lee (1915-21), continued the tradition of comparative law at McGill. Prior to coming to McGill, Dean Lee taught law at both Oxford and University College London, holding the chair in Roman-Dutch law at the latter. At the same time, he practised not only the common law but also the civil law in cases on appeal to the Privy Council from Ceylon, where he had first developed an interest in Roman-Dutch law while working in the civil service. While Dean at McGill, Lee expanded on Walton’s mixed-jurisdiction research, produced a major textbook on Roman-Dutch law, and published on issues of comparative law across the British Empire. Like Walton before him, Dean Lee was also a Romanist, and his understanding of the value of studying Roman law – a subject he taught at McGill – captures the broader comparativist agenda to which the Faculty adheres to this day:

 

 

A law student must learn the laws of his country. Granted. But he must approach them with a mind free and unrestrained, not with that of a slave. He must know how to rise above them, to see them in a proper perspective, to take the larger view, to form a rational and critical estimate of their strength and weakness. Now there is no better, perhaps no other, method of fostering the right habit of mind than the comparative study of more than one system. (Lee, infra, at 136) 

Scholastically, Dean Lee aimed to return the Faculty to its roots – that is, to educate a broad base of students beyond those destined for legal practice; in his view, McGill should become “the scene of a great school of law in which the science of law will be studied in its comparative and international aspects. Such a school of law would be a place of world resort and world-wide influence and renown” (Robert Warden Lee, “The Law Faculty of McGill University: its past, present and future”, undated typed memorandum, MUA, RG2, Cont 64, File 1172, cited in Hobbins, infra, at 189-90). To this end, he reintroduced common law study into the B.C.L. program as a complement to the civil law, which had been the exclusive focus of the curriculum since the adoption of Quebec’s Civil Code half a century earlier. Moreover, for the first time in McGill’s history, Lee established a master’s degree in law, underscoring the vocation of the Faculty in training future legal scholars.

Research became a particularly significant feature of the Faculty of Law under the leadership of a subsequent Dean, Percy Corbett (1928-36). A Romanist like Walton and Lee, Dean Corbett successfully advocated for a special fund to publish faculty scholarship, created new awards for graduate study and legal writing, and instituted an undergraduate thesis requirement for the first time since the turn of the century.

By the 1950s, comparative law had come into its own as a discipline around the world, including at McGill. New faculty with comparativist interests were appointed and the Faculty of Law introduced its first formal comparative law seminars, one of which was taught by Professor Louis Beaudouin, who went on to publish a groundbreaking study of comparative law in Quebec, Le droit civil du Québec: modèle vivant de droit comparé. The same decade witnessed tremendous growth in the Faculty’s research stature and output, in both comparative law and more traditional disciplines. By 1960, Maxwell Cohen (Acting Dean, later to become Dean, 1964-69) would identify comparative law as first among all the research areas in which the Faculty particularly excelled.

A New Home for Comparativist Research and Graduate Studies: Birth of the Institute of Comparative Law

Five years later, in 1965, Dean Cohen spearheaded the creation of a new graduate institute, supported by a major investment in research funding by the Ford Foundation: the Institute of Foreign and Comparative Law, subsequently renamed the Institute of Comparative Law (ICL). With J.J. Gow, then the Gale Professor of Roman Law, as its first director, the Institute was intended to reassert McGill’s position at the forefront of legal education by serving as a conduit for new developments in legal research. Shortly after its founding, the Institute introduced a number of graduate electives open to undergraduate and graduate students alike. The teaching mission of the Institute – and the new faculty it attracted – laid the groundwork for the reestablishment of an LL.B. option at McGill for the first time since Robert Warden Lee had been Dean. In 1968, Professor Gow was succeeded as Director of the ICL by H.R. Hahlo, who reoriented the Institute towards research and graduate studies. From that point onwards, the Institute became the locus of all graduate degree study in law at McGill, outside of air and space law studies (the Institute of Air and Space Law having been founded in 1951).

In 1975, Paul-André Crépeau acceded to the Directorship of the ICL. The Faculty and the ICL especially became reinvigorated as their civil law scholars were able to return their attention to research output after many years devoted to the civil code revision project. Comparative private law and international business law developed into important research specialties for the ICL, and a specific teaching program focused on the latter was introduced under the auspices of the Institute in 1977. By the end of the 1970s, the ICL was welcoming approximately 20 new graduate students each year, many from outside Canada. New concentrations in health law and international human rights law were established in the following decade.

From the 1980s onwards, the comparativist methodology that was by now so central to the research and graduate studies of the Faculty began to assert itself in the undergraduate program, thereby enhancing the unity of McGill Law profile. This development coincided with a new aim of the ICL to formulate a distinctive theory of comparative law that could directly inform the Faculty’s unique undergraduate program; the project was led in part by H. Patrick Glenn, a former president of the American Society of Comparative Law, who became Director of the Institute in 1989.

Global Research, Global Connections: The ICL in the 21^st Century

While playing a prominent role in the identity and advancement of the Faculty of Law and its programs, the ICL has been equally engaged in external developments in law. The Institute has been the site of a breadth of scholarly projects undertaken in partnership with other juridical organizations, and has a history of relations with international bodies committed to issues of arbitration and private international law. The ICL has also been solicited by agencies, notably the Canadian International Development Agency, to pursue commissioned law reform projects in countries with evolving legal systems. In the last two decades, for example, work on law reform in Vietnam, China, and Russia has been completed under the ICL’s aegis. In these and other endeavours of the ICL, one finds the fulfillment of the promise that Dean Lee foretold almost a century ago.

Sources:

Brierley, JEC. “Developments in Legal Education at McGill, 1970-1980” (1982-83) 7:2 Dal LJ 364.

Frost, Stanley, & David L Johnston. “Law at McGill: Past, Present and Future” (1981-82) 27 McGill LJ 31.

Hobbins, AJ. “‘A Couple of Generations Ahead of Popular Demand’: The First National Law Program at McGill University, 1918-1924” (2008) 31:1 Dal LJ 181.

Lee, Robert Warden. “The Place of Roman Law in Legal Education” (1923) 1:2 Can Bar Rev 132.

Macdonald, Roderick A. “The National Law Programme at McGill: Origins, Establishment, Prospects” (1990) 13:1 Dal LJ 211.

Price, TW. “Robert Warden Lee: Cursus Vitae / In Memoriam” [1958] Acta Juridica 1.

“Professor Robert Warden Lee (Editorial)” (1922) 39 SALJ 1.

Sahlas, Peter J. “The Civil Code of the Russian Federation from Foreign and Comparative Law Perspectives: An Introduction” (2005) 30:1 Rev Cent & E Eur L 1.

Various McGill Faculty of Law newsletters, 2000-2010.

 

Jennifer Anderson