Mr. Speaker, it is passing strange to hear some of the comments I have heard this morning. It is nearly 90 years since Benjamin Cardozo wrote his famous essay "Ministries of Justice".
For those who do not know better, it was said that Mr. Justice Cardozo was the greatest jurist never appointed to the Supreme Court of the United States. Then Herbert Hoover, in what some have said was his greatest act as president, appointed Mr. Justice Cardozo in his twilight years to the Supreme Court of the United States.
When he wrote 90 years ago he was making the case for an independent law commission. Its members would neither be civil servants because they were too close to the minister, too much under ministerial supervision, nor legislators because they were too much concerned with the exigent here and now of reading the flow of papers and attending to the details of legislation. He wanted people with a long vision and a detachment from politics. This is why he made the case.
His ministry of justice was not a ministry in our sense. It was an independent body of law commissioners to take a long view to try and establish the necessary relationship between positive law as written and the society it was supposed to serve.
When he wrote he was undoubtedly reminded of the words of his great friend, we understand from different legal tradition because Cardozo was the son of immigrants who had come from different legal tradition, Mr. Oliver Wendell Holmes who said: "The life of the law has not been logic; it has been experience".
At the time Cardozo wrote the legal system in the United States, Great Britain and parts of the then British Empire, now the Commonwealth that received the common law tradition, the law was essentially known as black letter law. From the vibrancy and creativeness of the early days of the common law it had degenerated into Lord Eldon's, it was said, juridical conservatism: the pursuit of precedents divorced from social reality, the pursuit of
logical interpretations divorced from what happens in the daily lives of citizens.
In its creative period the common law was a law in full evolution. By the 19th century it had decayed into a rigid formalism. This is from what Cardozo had wanted to break away, and this is what those countries that followed him, in a very belated way the United States, have tried to achieve.
The law is more than the study of precedents. Precedents can be studied by law students cramming for examinations. However our society is evolving. In fact at the turn of the century, we lived in a revolutionary period in the world community as dramatic as the Thirty Years War and the late 17th century western European society, a world in revolutionary change with laws that are increasingly out of date.
I think one of the ironies that I encountered in my pre-parliamentary career, visiting many countries that sought my advice, was the knowledge that with the help of visitors from other countries and experts provided by the Canadian International Development Association, CIDA, their laws would probably end up more up to date and more relevant than Canadian laws.
We advise countries abroad because we believe in the free market economy and we believe the free market economy to be properly achieved with liberalization and rationalization of the legal system. We advise many other countries on how to update their laws. The curious thing is that dynamic element sometimes produces commercial law, laws on transactions involving foreigners, that are better and more up to date than our own, than American laws or the laws of other countries exporting their economic ideas. That is a sort of contradiction that frankly is unacceptable in our society.
I spoke of the period of legal positivism, the pursuit of the black letter law, the pursuit of precedents at the cost of reason, which is fortunately behind us as a legal theory taught in law schools.
The legal realist movement focused on the gap between the law in books and the law in action; the law as written in some bygone age and the law in action and how it was actually applied. It is a movement that is peculiarly North American although there are continental European counterparts.
It leads directly into the school of sociological jurisprudence whose founder was the great Dean Roscoe Pound of the Harvard law school followed by the Commonwealth writer Julius Stone and by the man who had the distinction of teaching two American presidents, Gerald Ford and Bill Clinton, and Bill Clinton's wife, Myres McDougal. The notion is that law exists to do other things than to give a pre-defined answer to new problems, that it is in constant evolution, that law exists to solve social problems, that there is a necessary policy element inherent in law and that the only way to get good legal decisions and good laws is to study society.
The intellectual framework of a good jurist today includes much more than logic and much more than the study of precedents. It includes a necessary acquaintance with economics, a necessary acquaintance with the driving forces in commerce, in business in our society, a knowledge of the sociology of the state, of human relations. This is the necessary intellectual equipment of a good lawyer today and it is basically what Cardozo spoke of when he referred to the need for creating ministries of justice.
Legal research would have to be carried on anyway. I asked the Minister of Justice two days ago what had happened when the Conservative government made the decision to cancel the law reform commission, whether he had buried research. He said no, they had to carry it on within the department.
In terms of cost saving we are dealing with essentially the same thing, civil servants. However, civil servants do not have that freedom from the exigent here and now of daily departmental practice that Cardozo said was a necessary element in the process of law reform.
In looking to the formation of the law reform commission again we are responding to the challenge today of a law responsive to society, Canadian society and the society of the world community, in continuing almost revolutionary change in terms of the social forces moving within us. It requires a group of people independent from the government and of high intellectual distinction.
I said to the minister when he introduced this bill: "Your big problem is cherchez l'homme or cherchez la femme, look to the right people. Whom are you going to get?" He said: "Whom can you think of?" He recognizes the need for creative appointments. This is where opposition party members can help. Give the minister names. I said I could give him a couple of names from the past including Mr. Justice Rand, our greatest liberal judge on the Supreme Court of Canada. He gave us a bill of rights before we had the 1982 charter; somebody like that in his creative periods.
I also took the opportunity to cite somebody well known to many members of the House, the late Jean-Luc Pepin who died only a couple of weeks ago in the prime of his life. He was a non-lawyer. This is one of the valuable things in this bill. We do not limit the choice of members of this commission to lawyers. We recognize, as the French have done and the Germans have done, that even on supreme courts, constitutional courts, non-lawyers have a role to play and should be included, and they are.
I had the honour of being chief advisor to Jean-Luc Pepin in the preparation of his report on the Constitution along with John Robarts, Léon Dion and John Meisel. If his report had been adopted many of our problems of federalism today would have been resolved before.
The quest goes on for the right people. Please, the invitation goes to members of the government and members of the opposition to put forward the names. This is intended to be independent. It will only be independent and courageous if we get the right people. The minister is on the right track. They do not have to be lawyers. It is a challenge. We have given so much time to Quebec issues that very much of our creative energy in other areas has been pre-empted. If we do not modernize our own laws the problem of economic recovery will be very much accentuated.
I see no point in my telling Chinese audiences, as I did from 1980 onwards, or audiences in other countries that if you want a free market economy, you need streamlined, up to date laws that respond to the exigencies of the society you are living in. There is no point telling these people that if we do not do it at home. This is the message in the law reform bill. Please see the large issue, see the necessity for this and take the steps to ensure the choices will be excellent ones.
