In 1992 the American academic and philosopher, Francis Fukuyama, provocatively wrote that in the western democracies we had reached “the end of history”. He was not arguing that nothing new would happen but rather that ideologically, liberal democracy had reached a form of perfection. (For a readable summary of the ensuing debate see The Guardian and a recent article by Eliane Glaser.) But a lot has happened ideologically and otherwise since 1992 and you might say that now Professor Fukuyama’s idea is well...history.
Just consider the law and its intimate connection with the past.
Edward Greenspan, the great Canadian criminal lawyer, who died late last year was a famously busy man. Yet, in spite of his prodigious case load he spent a lot of time telling stories about Canadian justice on radio, television and in print. As he suggested in an introduction to a friend’s book (Raw Life, Cameos of 1894, Justice from a Magistrate’s Bench Book, J. Patrick Boyer), legal history appealed to his sense of humanity. The book details the sometimes rough justice delivered in small town 19th Century Ontario. However, many of the crimes from that day are not much different from those that appear on any modern docket, which led Greenspan to observe: “…while we may progress with our technology and civilization, the human experience from generation to generation remains a timeless bond”.
The law is all about human experience. Lawyers and judges whether they care about history or not, whether they labour in the civil or criminal field, whether they are prosecutors or defence, whether they appear before the bench, or sit on it, all work in the factory of law where history, both recent and distance form the basis of all their work.
Consider the Magna Carta, one version of which will be visiting Alberta (the Legislative Building, Edmonton November 23 - December 29, 2015) and other parts of Canada this year on the 800th anniversary of its original signing. While it stretches back eight centuries it is still the foundation of such fundamental liberties as freedom from arbitrary detention, jury trials and the right of women not to be forcibly married.
Think back to law school and all that we once knew about the roots of our profession. Revel in the memory of law professors’ favourites such as: Carlill v Carbolic Smoke Bll Co
[1892] on truth in advertising; Donoghue v Stevenson, the 1932 snail in a bottle case that helped establish (among other things) a manufacturer’s duty of care to a buyer; or Pierson v. Post [1805] the classic on the possession of a pursued wild animal; or Rylands v Fletcher [1868] on tort, or Salomon v Salomon [1897] on limited liability.
I could go on.
The point is, our profession is founded and importantly relies upon the past. In civil law property transactions, from a simple house purchase to a complex multi-million dollar corporate deal owe their certainty to precedent, in other words to history. Criminal cases demand respect for the ancient common law rights and freedoms, now Charter-protected, of every individual. Within the context of protected rights and the requirement of proof beyond reasonable doubt it can be argued that the criminal courts especially deal with history every day. It is in the criminal courts that the sometimes vague, confusing and disputed accounts of the recent past are analyzed and judged. The court is dealing with the recent past, certainly, but those possibly criminal events are still in the past, and as such they are a form of history.
Consider also the history behind the Criminal Code of Canada, the foundation of our modern criminal justice system. The Romans codified their laws as did the French, the Germans and many other European nations each in their own way. But the Brits struggled unsuccessfully from the mid-1500s to shoehorn the Common Law into a code. While it never happened in England, a great deal of groundwork on codification was done by English jurists, Parliamentarians and academics. Largely as a result of their work Canada - rather surprisingly in London’s view - created and in 1892 adopted its own criminal code. As Desmond Brown observes in his book The Genesis of the Canadian Criminal Code of 1892 it accomplished “the amelioration and systemization of the cruel, capricious, and obscure criminal law by a process of substantive amendment and codification.”
Today the criminal bar, the Crown and the Bench rely on the historic, though frequently amended Criminal Code. It is the Code and the resulting body of exclusive Canadian case law which along with the Charter is used to prosecute, defend and adjudicate criminal law in this country.
The very idea of history and the theoretical and scientific changes which have shaped the modern concept of history are paralleled by similar developments in the investigation and prosecution of crime.
In the western tradition, written history can be traced to the Greeks. Most notably perhaps to Thucydides who around 400 BCE wrote a reasonably balanced account of the Peloponnesian War between Athens and Sparta in which he took part. The battle scenes are still vivid and highly readable. The next major critical development in the western tradition of writing history (the historians among you will no doubt quibble) was the work of the 19th century German philosopher Leopold von Ranke. He argued historians must “prove” their assertions by providing documentary or other evidence in support of their arguments. It was a development which imposed the sheen of scientific inquiry on what had largely become the art form of writing history. The same thing was happening in other areas of philosophical, scientific and spiritual inquiry. Most dramatically perhaps was Charles Darwin’s explosive publication in 1859 of The Origin of Species.
Science also began to gain persuasive momentum in the world of the law. As courts wrestled with trying to determine exactly what happened they increasingly relied on scientifically, or at least systematically gathered physical evidence rather than primarily viva voce testimony. Forensic science was on the rise. Fingerprinting, mug shots, blood typing, bite marks and other scientific and surgical investigations became increasingly common and sophisticated and helped police develop evidence that could assist prosecutors, or perhaps even clear suspects.
In a sense those first forensic scientists were modern historians. They were using the scientific method to discover with some degree of certainty what happened in the past. Forensic science is a now indispensable window into what occurs behind closed doors, or without living or cooperative witnesses.
Even lawmakers, who seek to craft laws that will have future utility, depend on past experience to make those new laws as useful and watertight as possible. Productive lawmaking, effective law enforcement, and the testing of those laws in the street and in the courtroom are all part of an historical continuum.
Of course these examples raise the thorny philosophical question, especially when it comes to the law, are we prisoners of the past or beneficiaries of the creative application of a body of historical knowledge? In 1926, Benjamin Cardozo who was to become Associate Chief Justice of the US Supreme Court tackled that issue in a slim but still relevant little volume called The Nature of the Judicial Process (available in most law libraries). He was a man of generally liberal sentiment, though appointed by a Republican. Cardozo wrote “I do not mean that the directive force of history, even where its claims are most assertive, confines the law of the future to uninspired repetition of the law of the present and the past. I mean simply that history, in illuminating the past, illuminates the present, and in illuminating the present, illuminates the future.”
It is my position that history is not dead nor has ideological perfection been achieved. History remains vibrantly alive especially within our legal system. A system which continues to evolve based on both the distant and immediate past. It is a system which embodies our society’s historical commitment, however imperfect, to regulate our affairs in a demonstrably just and reasonable way.
Geoff is a Calgary criminal lawyer with an MA in history. A former CBC reporter, he continues to write about the law and history. He recently had an article published in the Saskatchewan Law Review about Canada's most famous handwritten will.