Planning variable, law's true role, inter-disciplinary, legal scholarship and research
A few years ago, the writer was asked by a professional association (concerned with pharmacy) to organize the legal side of a research project. The project was to examine the state of the profession and to produce a new design for the future. The suggestion was made that the legal part of the report should be done first so that the other reporters could know what they could or could not suggest in making their proposals. It was replied (by the legal researchers) that law too is a planning variable, and that law's true role is not to confine desirable reform but to fulfil it. This is not an isolated example and most of us who have done inter-disciplinary work could provide others. A complementary attitude is that lawyers should not concern themselves with more than the technical legal aspects of social, political, or economic problems, unless they have been converted into politicians, civil servants, or business executives, and are qualified to think differently by wearing new hats. The law as such is supposed to be concerned with current legal rules and process (or with legal history to understand the present better). In consequence, legal scholarship and research are commonly regarded as mostly exegesis (was Sheep J. justified by authority, and was he correctly reversed by Lion, Tiger, and Leopard L.JJ.?) or with unravelling legislation and criticizing its logic. One hears complaints that some lawyers in large corporations, when asked to comment on management proposals limit themselves to identification of what canot be done (because of the law) and find it hard to function as creative members of a team seeking positive solutions. The tendency to regard law as pigeon-holed and apart is aided by the Canadian situation where legal education deals almost exclusively with those intending to practise. The Common Law and the Civil Law are integral parts of the cultural heritage of the Western world, and, however we value them, they are major legacies of our past to all of us and, one way or another, they are creative forces for the future of our societies.
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I. F. G. Baxter, “The Creative Role of Law” (1975-1976) 2:1 DLJ 41.