"You must learn to see life steady and whole": Ivan Cleveland Rand and legal education.

AuthorHolloway, Ian
PositionCanada

IVAN RAND: A MAN AND HIS TIMES

To understand properly Ivan Rand's views on legal education, just as to understand properly his jurisprudence, it is critical to appreciate that he was born a Victorian and came of age an Edwardian. He came to national prominence in the Atomic Age--in the middle part of the twentieth century--but he was born in 1884, in the midst of the Mahdi's Rebellion in the Sudan and a year before the Riel Rebellion in the old Red River Territory. His birth took place in the same year that the British Parliament enacted the Third Reform Bill, (1) and only two years after the Married Women's Property Act came into force. (2) Rand was sixteen when Queen Victoria died and, while old enough to have enlisted in the Canadian battalions that fought in the Boer War, he was too old to serve in the First World War. He was thirty years of age when the "Guns of August" started and almost thirty-five when they fell silent in November 1918.

To consider Ivan Rand in this context can seem not a little startling, for we--at least those of us who are not students of the political history of the Maritime Provinces or of the Canadian National Railway--tend to think of him in terms of the foment of our times. His landmark judgments in the Jehovah's Witnesses cases (3) are generally presented either as a presage to Quebec's Quiet Revolution or as a prelude to the constitutionalization of civil rights in Canada. Likewise, his formula for resolving disputes over the requirement to pay union dues (which now bears his name) is understood to be one of the key episodes in the post-War coming of age of Canadian labour law.

So, too, for those who know much about Ivan Rand's legacy in legal education. He assumed the founding deanship at the University of Western Ontario at the tail end of the struggle over control of legal education in Ontario, which was really a struggle over its modernization. Yet the fact remains that the intellectual assumptions which guided his life--the "inherited instincts, traditional beliefs, acquired convictions", as Cardozo famously put them (4)--were formulated when the present Queen's great-grandfather and great-great grandmother were on the throne.

In fact, Ivan Rand himself once described the economic, social and political forces at play in his youth. Though writing of the United States, with only slight modification, his observations held true for Canada too:

The quarter century between 1890 and 1915 saw in the United States the emergence of a phase of national life in which the dominant role was taken by the power of capital evolving in many manifestations through industry and control of natural resources. The nation had reached the geographical limits of its expansion and was settling into the intense development and organization of its economy. As the imagination of its captains swept back horizons, massive conceptions took shape. Here was a world in itself, holding open the greatest opulence of nature to the swift, the strong and the skilful. In the mounting crescendo came aggregations of economic interest, interlocking controls over money and industry, monopolistic establishments and rumblings of labour conflict. (5) Though seldom quoted today, this passage captures, as well as anything else that he wrote, the challenges that Justice Rand felt the common law system faced in his lifetime--and, for present purposes, the challenges that lay before those who had responsibility for educating lawyers. We are all, to one extent or another, creatures of our time. His was a time, as his own words attest, of imagination and science. It was the moment when educated people could, without any sense of contradiction, embrace a blend of high-Victorian idealism and classic liberal rationalism. It was also the moment when educated lawyers, of whom Justice Rand stood in the first rank, could see themselves in the vanguard of a new form of constitutionalism, whose mission was to civilize the industrial state. All of these things, though born of the tumult of more than a century ago, formed a thread which ran through his entire professional life and which remained at the core of his views on legal education.

IVAN RAND'S OWN EDUCATIONAL EXPERIENCES

While the first formal biography of him has just been published, the essentials of Ivan Rand's life are well known. (6) Born in New Brunswick, into a working-class railway family, his father was chief engineer of the Inter-Colonial Railway in Moncton, which was then becoming known as "the Hub of the Maritimes". Yet, despite its working-class roots, the Rand family prized education and political debate. Ivan Rand accordingly developed a political literacy from an early age. Following high school, he went to work as an audit clerk with the Inter-Colonial, an experience which led to a life-long interest in accounting. (7) After five years at the Railway, he enrolled at Mount Allison University, in Sackville, New Brunswick, where he studied first Engineering and then Arts.

Speaking many years later, he claimed that he had attended Mount Allison during its golden age--"between 1905 and 1909, when we had Professor Tweedie and Professor Hunton and Dr Smith and Dr Allison." (8) Yearnful nostalgia aside, his undergraduate years remain important for the legal historian for, as Marshall Pollock has noted, it was at Mount Allison that he delivered his first important public speech, the Valedictory Address of 1909. (9) There is more than a little Allisonian Methodism in his words, but Pollock is correct when he says that Rand's valedictory gave the world the first glimpse of his personal philosophy and what would become the basis of his approach to professional life. While the whole address makes for inspiring reading even today, the golden nugget is in his final exhortation to his classmates:

As we go out let us take this as working principle: do the duty that lies nearest you--and let it be done honestly and thoroughly. If we do this, perhaps our living here will not be altogether in vain. (10) Duty--an ethos converted to a near religion during Victorian times. But it was to be the watchword of Ivan Rand's approach to his career and, as will be seen, a theme which underlay his feelings about the role of a law school. To borrow Pollock's words once again, "Rand viewed the law with such respect as to deem it a power, an obligation, a vocation in par with a religious call." (11) It followed that a law school should not be merely a professional school but rather should occupy a loftier plane; that the legal academy should serve as a professional seminary with the twin mission of teaching the law and inculcating its novitiates into the jurisprudential fraternity.

LANGDELL'S HARVARD

Following his B. A. studies, Ivan Rand served briefly as an articled clerk in the office of Robert W. Hewson, K.C., a prominent member of the Moncton Bar. (12) Unfortunately, we do not have any extant reminiscences of his time there. (13) But in the Fall of 1909-after a preparation which included committing to memory much of the first volume of Blackstone's Commentaries! (14)--he enrolled at Harvard.

The Harvard Law School was in almost every respect an extraordinary place. After his death, Chief Justice Cartwright recalled a letter that Justice Rand had written him in which he described a visit that he had paid to Harvard many years after his graduation. Justice Rand wrote that he had had

... a rush of feeling that made me realize that I had been one of the most favoured persons on earth to have been privileged to spend three years in such a surrounding and atmosphere. When one thinks about it, what an insignificant percentage of this world's population ever do enjoy such a privilege. (15) Yet, for much of its life, Harvard had been, at best, mediocre. (16) Standards were so low as to be virtually non-existent. James Barr Ames, Dean during Ivan Rand's first year as a student, once described Harvard Law School as it was at the time that he began his studies, forty years earlier. It was, he wrote

... a faculty of three professors giving but ten lectures a week to one hundred and fifteen students of whom fifty-three per cent had no college degree, a curriculum without any rational sequence of subjects, and an inadequate and decaying library. (17) In fact, until 1878 Harvard Law School did not require that one actually pass any examinations in order to graduate. To receive the LL.B., one had only to remain in residence for a period of eighteen months. (18) But by the time of Ivan Rand's enrollment, all of this had been swept away by the Langdellian "revolution", which followed from the appointment of that great visionary, Christopher Columbus Langdell, as Dean of Law in 1870. Langdell succeeded in laying the groundwork for a law school of a stature and reputation that will likely never be achieved again--and a law school culture which was to have a profound impact upon Ivan Rand. (19)

When he enrolled in September 1909, Rand joined a class of 243 students and a school of over six hundred. (20) Felix Frankfurter was one of his contemporaries. The then-new Langdell Hall, which represented the ne plus ultra in terms of teaching facilities, had been fully opened a year before, in 1908. The faculty consisted of nine professors (including Dean Ames) and five lecturers. (21) The faculty-student ratio of almost 45:1 seems untenable by today's standards, but there was about the school a tremendous degree of intimacy and common purpose. Apart from Ames, other notable teachers included John Chipman Gray--who seemed to have had a particular impact on Rand (22)--Eugene Wambaugh, Joseph Henry Beale and Samuel Williston. In 1910, Dean Ames died and was replaced by Ezra Ripley Thayer, son of Professor James Bradley Thayer. (23) Shortly afterwards, in Ivan Rand's final year, Roscoe Pound joined the faculty.

Pollock has written wonderfully about Ivan Rand's Harvard days, and the degree of industry and...

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