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Rethinking ‘the Nation’ in National Legal History: A Canadian Perspective

Published online by Cambridge University Press:  09 May 2011

Philip Girard  and
Jim Phillips
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Extract

In 1929, when Lorna Parsons tired of her four-year marriage to a London, Ontario tailor, she decided to seek a divorce—in Reno, Nevada. Even though Lorna's divorce was not generally recognized in Canada, obtaining it was important to her and to the hundreds, if not thousands, of Canadians who similarly sought United States divorces at a time when Canadian law was extremely restrictive. The choices of Parsons and her compatriots should be of interest to legal historians. They problematize the idea of national legal history by reminding us that law does not always remain in the tidy jurisdictional containers constructed by legal authorities and academics. National boundaries are more porous, and the nature of law itself more fluid, than we often admit.

Type
Reflections on Further Research in Comparative Legal History
Information
Law and History Review , Volume 29 , Issue 2 , May 2011 , pp. 607 - 626
Copyright
Copyright © the American Society for Legal History, Inc. 2011

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References

1. Lorna Parsons is a pseudonym; her divorce and the general phenomenon of Canadians seeking divorce in the United States are discussed by Snell, James G., In the Shadow of the Law: Divorce in Canada 1900–1939 (Toronto: University of Toronto Press, 1991), 231 et seqCrossRefGoogle Scholar.

2. There are of course exceptions to this generalization: see Karsten, Peter, Between Law and Custom: “High” and “Low” Legal Cultures in the Lands of the British Diaspora—The United States, Canada, Australia, and New Zealand, 1600–1900 (Cambridge: Cambridge University Press, 2002)Google Scholar. Michael Burrage, although not a legal historian as such, uses the comparative method to explain differences in the development of the legal profession in three jurisdictions in Revolution and the Making of the Contemporary Legal Profession; England, France, and the United States (Oxford: Oxford University Press, 2006).

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21. Re Deborah E4-789 (1972), 28 D.L.R. (3d), 488. In Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 the Supreme Court of Canada refined this test by suggesting that such customs must have been integral to the cultural life of the nation in question at the time of contact.

22. Casimel v. Insurance Corp. of British Columbia, (1994) 2 C.N.L.R. 22 (B.C.C.A.) (Adoption by grandparents of grandson according to customs of Carrier Nation sufficient to entitle them to insurance benefits as “dependent parents” under provincial insurance statute upon accidental death of grandson.) S. 46 of the British Columbia Adoption Act, R.S.B.C. 1996, c. 5 now provides that “the court may recognize that the adoption of a person effected by the custom of an Indian band or aboriginal community has the effect of an adoption under this Act.” We thank Susan Boyd for this reference. It should be noted that the practice of judging the validity of each custom individually prevents the problems associated with a system of personality of laws, such as that observed in India.

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32. The incidence of family breakdown or self-divorce in Canada would of course have been considerably higher than the formal divorce rate, making the contrast between the two countries less stark. The figures on formal divorce come from Snell, Divorce in Canada, 9, and Friedman, Private Lives, 33.

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34. For the United States, see Grossberg, Governing the Hearth, 204, 224. There is no convenient survey for Canada, but the earliest statutes in the common law provinces seem to be the Legitimation Act, Statutes of Ontario 1921, c. 53, allowing legitimation per subsequens matrimonium, and Statutes of Nova Scotia, 1924, c. 20, to the same effect, and also allowing a mother to inherit from her illegitimate child (although the converse would not be the case until 1966). Art. 237 of the Civil Code of Lower Canada of 1866 permitted legitimation per subsequens matrimonium.

35. Pascoe, What Comes Naturally.

36. Carter, Being Monogamous, 184. At one point the Canadian state considered criminalizing sexual intercourse between white men and Native American women unless the parties were married: Ibid., 157.

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39. Although slavery did exist in eastern Canada, it is generally considered to have died out by about 1810 and did not play the same economic or, with the possible exception of New Brunswick, ideological role as in the United States: Bell, D.G., “Slavery and the Judges of Loyalist New Brunswick,” University of New Brunswick Law Journal 31 (1982): 9–42Google Scholar.

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41. Grossberg, Governing the Hearth, 4–30.

42. Friedman, Private Lives, 32.

43. Pascoe, What Comes Naturally, passim.

44. Snell, Divorce in Canada.

45. See, for example, Backhouse, Constance, Colour-Coded: A Legal History of Racism in Canada, 1900–1950 (Toronto: University of Toronto Press and Osgoode Society for Canadian Legal History, 1999), 173–225 (account of prosecution of Ku Klux Klan members’ attempt to discourage an interracial union in Oakville, Ontario in 1930)Google Scholar; Delmerson, Velma, Incorrigible (Waterloo: Wilfrid Laurier University Press, 2004)Google Scholar (account of white woman whose family had her committed to a refuge under the Juvenile Delinquents Act in the 1930s in order to prevent her marriage to a Chinese man).

46. Brisson, Jean-Maurice and Kasirer, Nicholas, “The Married Woman in Ascendance, the Mother Country in Retreat: From Legal Colonialism to Legal Nationalism in Quebec Matrimonial Law Reform, 1866–1991,” in Canada's Legal Inheritances, eds. Guth, DeLloyd and Pue, W. Wesley (Winnipeg: University of Manitoba Press, 2001), 406–49Google Scholar.

47. Pascoe, What Comes Naturally, 307–10.

48. It is revealing that the issues discussed in Boele-Woelki, ed., Debates in Family Law Around the Globe, relate almost exclusively to parent–child relations (eight chapters) and same-sex marriage (five chapters).

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51. In fact, even in the field of child and spousal support in Canada, where need is a highly relevant consideration, much effort has been put into devising guidelines for support awards that will reduce judicial discretion as much as possible.

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54. See note 6 above.

55. See, generally, Harding, Sarah K., “Comparative Reasoning and Judicial Review,” Yale Journal of International Law 28 (2003): 409–64Google Scholar.

56. 539 U.S. 558 (2003).

57. Bowers v. Hardwick, 478 U.S. 186 (1986), 196.

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60. Lawrence v. Texas, 572–73. Justice Kennedy did not know or chose not to note that Canada (where criminal law is a federal matter) had decriminalized most homosexual acts in 1969: Statutes of Canada 1968–69, c. 38.

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