Law, Rhetoric, and Irony in the Formation of Canadian Civil Culture

Michael Dorland and Maurice Charland examine how, in the approximately four hundred years since the encounter of the First Nations with Europeans, rhetorical or discursive fields developed in politics and constitution making, in the formation of a public sphere, and in education and language. They discuss the ways in which these fields changed over time within the French regime, the British regime, and in Canada since 1867, and how they converged through trial and error into a Canadian civil culture. The authors establish a triangulation of fields of discourse formed by law (as a technical discourse system), rhetoric (as a public discourse system), and irony (as a means of accessing the public realm) in order to scrutinize the process of creating a civil culture. By presenting case studies on historical themes such as the legal implications of the transition from French to English law and the continued importance of the Louis Riel case and trial, the authors provide detailed analyses of how communication practices form a common institutional culture. As scholars of communication and rhetoric, Dorland and Charland have written a challenging examination of the history of Canadian governance and the central role played by legal and other discourses in the formation of civil culture. In March 1996, Michael Dorland was invited by Will Straw, director of the Graduate Program in Communication at McGill, to give a talk on what he imagined cultural studies to be concerned with in the context of Canada. The suggestion he came up with was cultural studies of law; as Rosemary J. Coombe has put it, a field of academic inquiry that will emerge 'when scholars stop reifying law and start analysing it as culture ' (2001: 1). It seemed that one of the traits that was especially striking of the 'deep structures' of Canadian culture was that here was a site of complex and prolonged attempts to make very different conceptions of law, those of First Nations, those of the ancien regimes of pre-revolutionary France and late eighteenth-century Britain, and their subsequent mutations into modern Canadian law, enter into conversation with each other as well as with the new environments of their New World contexts. Maurice Charland, whose work on the rhetoric of constitution is better known by his American colleagues than at home in Canada, was spending his sabbatical at McGill and heard Dorland's talk. Charland was working on the problems of rhetoric, constitution, and political theory, and some of what Dorland said piqued his interest. A year later, the authors sat down together to begin planning this book. In the interim year, Dorland had spent part of a sabbatical at Duke University, immersing himself in legal studies, and taking some amusement from working in the law library where Richard Nixon had earned his law degree while supposedly surviving on Mars bars. He thanks John H. Thompson, director of the then Center for Canadian-American Studies, as well as the late Ted Davidson and his wife, Judith Harrow, for their hospitality both at Duke and in Durham. Thanks also to Margaret Brill at the Perkins Library and Janet Sinder at the Law Library for their advice, assistance, and direction. Dorland's time at Duke had generated a plan for a history of Western law. Charland thought that such a task xii Acknowledgments was too daunting, and suggested we not reinvent the wheel but concentrate instead on what we both felt were the ambivalences of law and its attendant political culture in Canada, a topic that in itself seemed sufficiently complex for the both of us. In 1997 the Social Sciences and Humanities Research Council of Canada granted the authors a three-year Standard Research Grant that made subsequent research possible. Appreciation is extended to SSHRCC and its reviewers for their invaluable support. At Carleton University, that support was initially made possible through internal grants from the Faculty of Graduate Studies and Research under the successive Deanships of John ApSimon and Roger Blockley. Then Dean of Arts Stuart Adam, Dean of the Faculty of Public Affairs and Management Allan Maslove and Vice-President Feridun Hamdullahpur also provided invaluable support. Dorland's two chairs, Paul Attallah, Associate Director, and Chris Dornan, Director of the School of Journalism and Communication, as usual gave of themselves unstintingly in backing his research endeavours. Still at Carleton, three of Dorland's PhD students, Peter Hodgins, Anne-Marie Kinahan, and Charlene Elliott were active co-collaborators in the research: Peter working on late eighteenth-century newspapers, Anne-Marie on aspects of woman's suffrage, and Charlene for being such a careful reader of an earlier version of the manuscript, and for doing the index. We thank the Kesterton Endowment of the School of Journalism and Communication for supporting Charlene's work on the index. At Concordia, Sheryl Hamilton, a former MA student at Carleton and later doctoral candidate at Concordia, now an assistant professor of communication at McGill, assisted Charland, both in collecting materials and in commenting upon various versions of what became our manuscript. Also at Concordia, Charland was assisted by Yon Hsu, Tricia Bell, Alana Baskind, Fabio Josgrilberg, and James Hill. In other locations where researching this study took us, the authors would like to thank Christine Veilleux, archivist of the Literary and Historical Society of Quebec. In England, the reference staff at the Public Records Office, Kew, provided a haven of air-conditioned comfort. The archival staff of the old British Library were patient in response to many queries. And the Senate House Library at the University of London, while sorely lacking in air-conditioning, was a treasure trove of texts in British imperial history. In Paris, archivists and staff at the old Bibliothèque Nationale, rue Richelieu, turned out to be much kinder than their fearsome reputations would have one believe. The staff of the CARAN not only provided the excellence of their archival resources to the Archives Nationales but also fine coin-operated espresso coffee machines! Back home again, the staff responsible for the Manuscript Groups at the to the staff at the Université d'Ottawa's Morissette Library as well as the Centre de recherche en civilisation canadienne-francaise. Parts of the chapters that follow were presented in different forms at conferences in a number of countries. Portions of chapter 1 were presented at the

In Rhetoric, Irony, and Law in the Formation of Canadian Civil Culture, Michael Dorland and Maurice Charland examine how, over the roughly 400-year period since the encounter of First Peoples with Europeans in North America, rhetorical or discursive fields took form in politics and constitution-making, in the formation of a public sphere, and in education and language. The study looks at how these fields changed over time within the French regime, the British regime, and in Canada since 1867, and how they converged through trial and error into a Canadian civil culture.

The authors establish a triangulation of fields of discourse formed by law (as a technical discourse system), rhetoric (as a public discourse system), and irony (as a means of accessing the public realm as the key pillars upon which a civil culture in Canada took form) in order to scrutinize the process of creating a civil culture. By presenting case studies ranging from the legal implications of the transition from French to English law to the continued importance of the Louis Riel case and trial, the authors provide detailed analyses of how communication practices form a common institutional culture.

As scholars of communication and rhetoric, Dorland and Charland have written a challenging examination of the history of Canadian governance and the central role played by legal and other discourses in the formation of civil culture.

Contents 7 List of Illustrations 9 Acknowledgments 11 Envoi 15 1. Situating Canada's Civil Culture 28 2. 'Who Killed Canadian History?' The Uses and Abuses of Canadian Historiography 55 3. The Legitimacy of Conquest: Issues in the Transition of Legal Regimes, 1760s-1840s 91 4. Constituting Constitutions under the British Regime, 1763-1867 132 5. The Limits of Law: The North-West, Riel, and the Expansion of Anglo-Canadian Institutions, 1869-1885 167 6. 'Impious Civility': Woman's Suffrage and the Refiguration of Civil Culture, 1885-1929 205 7. The Dialectic of Language, Law, and Translation: Manitoba and Quebec Revisited, 1969-1999 237 8. Civility, Its Discontents, and the Performance of Social Appearance 272 9. The Figures of Authority in Canadian Civil Culture 304 Notes 331 Bibliography 339 Index 367