Saturday, February 21, 2015

Why Legal History Must be Mandatory Legal Education

History on equality
not a proud one:

     Law-makers and educators in Ontario need to take the bold and courageous step of making a course or two in legal history focusing on the historical development of the concept of equality and the manifestation of discrimination in our law between men and women and between racial and cultural/ethnic groups mandatory for all students of law - including paralegals.  Such training will bring home the fact that our law whether we like it or not has historically been a mechanism for the oppression rather than liberation for women and others in society.  We ought not to hide from this reality.  Recognizing it is the first step towards a more just administration of justice.  Indeed, it was not long ago that women in Canada were considered property and did not have the legal right to vote. Similarly, it was not that long ago that a man of African-Canadian descent could not legally practice law in Ontario.  The Ontario Legislature had to pass a special law in order that Delos R. Davis could practice law in Ontario.

as a Sword:  

     In addition to bringing home to stake-holders the broader historical reality of our laws very real, calculated and deliberate choice to oppress rather than liberate these rights seeking segments of our society such education will assist in understanding some of the tools and practices which were traditionally employed to secure the desired public-policy result and to eradicate such practices.  In the adjudication arena the concept of credibility was the chief tool to secure the then status quo - women and racial and other minorities had no credibility.  It was - regrettably - that simple.  A conviction for rape could not be secured in the absence of corroboration.  A person of African-Canadian descent's evidence was routinely rejected on the basis of credibility.  An African-Canadian man accused of a sexual crime against a White woman was for all intents and purposes presumed guilty for a significant portion of our recent history.

     Education in legal history will not solve all of the problems of inequality in our legal system. The problems are way too profound.  However, history shows us that as we prod along we are indeed making some progress.  We now recognize and accept that certain beliefs are simply not acceptable or politically correct.  The challenge remains however in educating if not this generation then the next one in recognizing that history will forever be both a benchmark and a guide to informing our acts and omissions as law-makers, lawyers, judges and adjudicators.  Dismissing an allegation of sexual assault simply because it was a he-said-she-said is no longer acceptable.  Finding an African-Canadian man who testifies in his own defence guilty of sexual assault simply because the victim is a White woman is today not acceptable.  We now recognize and accept that the determination of guilt and innocence is not merely a "toss-up" between who we believe is telling the truth.  An understanding and appreciation of the historical reality of the connection between race, sex, gender, credibility and equality can only help to bring us closer to the ideal of a fair and just legal system.


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