Recommissioning Law Reform

Abstract

This article offers a critical analysis of expert Law Reform Commissions in Canada. The author traces the history of the idea of institutional law reform from its intellectual roots early in the twentieth century through its apotheosis in the 1960s and 1970s to its modern decline, which the author attributes to shifting cultural tendencies creating scepticism as to the value of law reform. The author argues for a reconceptualization of expert Law Reform Commissions, and his analysis proceeds in three stages. First, the author examines the concepts of law which are promoted by law reform and concludes that the widespread belief that explicit, official law (state legislation) is the superior juridical form is in fact erroneous. The author argues that formal legislation is not the only form of law, but in fact everyday practices (including non-linguistic ones) also constitute part of legal normativity. Next, the author contends that law reform is not the exclusive domain of the law reform commissioner, but in fact is carried out by judges, lawyers and all citizens every day simply by the performance of their daily activities. Finally, the author argues that in order to maintain their utility Law Reform Commissions must be willing to reimagine themselves. They must be willing to reduce staff and work with external personnel, they must reject narrow instrumentalist processes and focus on issues of broader relevance, and they must conceive of research projects not directly related to doctrinal categories of law and which are intended to create a product digestible by the entire population. The author concludes by arguing that, while there is a future for expert Law Reform Commissions in Canada, they must be willing to recommission themselves with a new focus.