Grants supports study of private law doctrinal 'revolution'

February 11, 2019

Erika Chamberlain

Dean Erika Chamberlain

Though typically less headline-grabbing than public law, private law affects the lives of everyday Canadians in critical ways.

Private law is the body of law governing private persons, their properties,  contracts, compensation for injury, and consent to treatment, for example, and it protects vital individual interests in personal security and economic well-being.

A SSHRC Insight Grant of $79,029, awarded to Western Law Professor Rande Kostal and Dean Erika Chamberlain in 2018, will fund research to explore the roots of the swift and dramatic transformation of Canadian private law beginning around 1970. Their research will explore how shifts in rights-thinking in the previous quarter-century effectively fostered a doctrinal "revolution" in Canadian common law.

“In the period from 1970 to 2000, Canadian common law lawyers and judges seem to have been strongly influenced by the major socio-cultural shifts of the previous quarter century, and began to develop a distinctly Canadian version of private law,” says Chamberlain, a tort law scholar. 

The first phase of their research project will analyze the rights-claims of the main social movements from 1945-1970.

“It was a time of intense socio-economic and cultural ferment,” says Kostal. “A period in which in Canada, there was a discernible shift in individual and collective consciousness of private ‘rights’ and corresponding obligations.”

Kostal and Chamberlain will document that, while Canadian society changed significantly during this tumultuous period, Canadian private law litigation and doctrine remained relatively fixed.

Rande Kostal

Professor Rande Kostal

“We’ll explain how Canadians increasingly came to perceive their moral, social and legal rights and obligations as inherent in their humanity and as products of their relationships with each other and with the state,” Kostal says. 

“From 1970 onward, Canadian private law began to turn away from the traditional British common law’s emphasis on autonomy and personal responsibility, toward a conception of law based on mutual interdependence, power imbalances, and responsibility for the creation of risky environments,” Kostal notes.

According to Chamberlain, because private law is governed by common law, rather than statute, there is little public debate, or popular understanding, about how the principles of private law undergo change.

“To the extent that socio-political ideas are reflected in private law, the process is one of indirect translation through new types of claims, creative legal pleadings, and judgments of the courts,” Chamberlain says. “This process is typically slow and haphazard.”

Kostal says the principal challenge of their study is to develop an original methodology to chart, document and explain the shift in private law reasoning during this period.

“Our overarching goal is to forge a fundamentally new approach to the study of doctrinal change in the private law of Canada's common law provinces, one recovering the socio-historical dynamics of litigation and the ongoing exchange between social, cultural and legal phenomena,” he says.

The second phase of their study will look at the precedent-setting private law cases decided between 1970 and 2000.

“Our case studies will yield extensive and original knowledge of how and why new kinds of private legal claims came to be asserted by clients, pleaded by lawyers, and accepted by judges,” Chamberlain says.