Much of the recent legal historiography of Upper Canada dwells on the motivations of the governing class in implementing statute law and operating legal institutions. Some authors employ a relatively radical interpretation of Elite motivation, insisting on a self-interest manifested through the manipulation and, occasionally, the outright disregard of law, institutions and legal ideology. For others, a fair interpretation of the behaviour of historical actors attempts to understand those actors on terms consistent with contemporary ideals. The result is a more conservative functionalism that interprets the role of law in history relative to the accomplishment of those ideological imperatives to which decision-makers were committed. However, the tendency in both approaches is to the subordination of law in legal history. The consequence is a reductionism in Upper Canada's legal history, by which the law is rendered epiphenomenal, secondary to politics, economics or, perhaps, self-interest. The overarching theme of this thesis is that very little legal-historical activity can clearly be characterized as purely self-interested, or purely idealistic. Rather, much of what occurs in the legislative chamber and in the minds of decision-makers is concerned with the mundane events of ordinary life, and not with the political intrigue and idealism that arguably emerges from consideration of events of particularly high political drama. To illustrate, this thesis will consider the Upper Canadian legal response to the cholera epidemics of 1832 and 1834. First, an attempt will be made to analyse the reluctance of the executive government to employ initiatives (both executive action and legislation) to combat the disease similar to initiatives in neighbouring jurisdictions. The executive and legislative responses will be seen to be motivated in large part by commitment to a widely shared vision of the public good inconsistent with many ordinary public health measures, including quarantine, reflecting some of the idealism one might predict through the conservative functionalism that characterizes much of Upper Canada's recent legal historiography. Secondly, the municipal legal response to the disease will be considered to illustrate the way in which a great deal of law develops not out of self-interest or idealism, but rather out of environmental pressure. The history of the legal response to the cholera epidemics is incomplete unless proper account is taken of the more mundane response of municipal authorities to the disease. It is in this arena that the legal historian can overcome the subordination of law to politics, and instead consider law as a mechanism to defend a relatively pristine legal community from environmental threat. The conclusion is that, to be more complete, Upper Canada's legal history must privilege environmental pressures as well as Elite motivation in the design and implementation of law and legal institutions.
| Identifer | oai:union.ndltd.org:uottawa.ca/oai:ruor.uottawa.ca:10393/8688 |
| Date | January 2000 |
| Creators | Atkinson, Joseph Logan. |
| Contributors | Benidickson, Jamie, |
| Publisher | University of Ottawa (Canada) |
| Source Sets | Université d’Ottawa |
| Detected Language | English |
| Type | Thesis |
| Format | 418 p. |
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