In Memoriam, Stephen A. Smith

Memories of one of my favourite professors

Stephen A. Smith, who taught me Contract Law and Advanced Common Law Obligations at McGill, and for whom I was a research assistant for two summers, has died. It is very sad news indeed. He was a good teacher and a good man.

Professor Smith was a leading private law theorist. He once joked that “every law professor only has one thing to say”, and there is truth in this, I’m afraid, as in any good joke, but he was very much the exception to this rule. Still, others will be better placed to speak to his accomplishments. As much as I liked him and enjoyed working for him, private law was and has remained beyond me, and indeed I don’t think I realized how important a scholar he was until much later; I’m afraid we took our professors for granted a lot. But I wanted to try to explain why I liked Professor Smith, despite not having been very interested in his subject.

As a teacher, he was always interested in why the law worked the way it did. One way in which this manifested itself, which I don’t think was especially popular but was probably my favourite part of the three semesters he taught me for, was having his second-year students read David Ibbetson’s A Historical Introduction to the Law of Obligations. Knowing that, centuries before Donoghue v Stevenson, there had been a case about a shipper who “by force of arms”, introduced salt water into the plaintiff’s wine barrels? I was there for that. Also, because he was interested in how things fit together and made sense, Professor Smith had no piety for courts that failed to live up to that standard. He wasn’t the only one of my professors from whom I learned this, but he was definitely one of them.

At the same time, he was mild-mannered, pleasant, unpretentious, and supportive. When a torts professor asked a class to describe the reasonable person, someone said that it was simply Stephen Smith. And he was.

Well, most of the time. Perhaps, to paraphrase Arthur Clarke, to discover the limits of the reasonable one needs to cross them a little into the unreasonable, and that’s what he did in the research he got me to help with. One of his jobs for me was to find out about remedies in French law. This sounds straightforward enough, until you realize that French law has no concept of remedies at all. It thinks in terms of obligations and the execution of obligations, rather than rights and remedies like the common law, and translating one into the other is by no means obvious. Professor Smith then went one better: what about remedies in Roman law? I’d never studied Roman law; good luck to me… And that wasn’t all. The best one, in fact, was this: try to find out if there actually exist private law examples of rights without remedies. That brought to mind Cristobal Junta, a character from the Strugatsky brothers’ Monday Starts on Saturday, a former inquisitor become researcher into wizardry and magic who regarded it as a point of principle to only investigate questions that had no answers, because if an answer exists, what’s the point of looking for it?

It wasn’t always easy to wrap my head around these things, but I think I learned a lot from them. Not so much about remedies, alas, but about law more generally, and about curiosity and thinking outside the box. I’m grateful to Professor Smith for having given me these opportunities ― despite my not having been an especially good student in his classes. These assignments may have made my head swim at the time, but they are some of my fondest law school memories now.

It is trite to say that one will miss a person who has died. But there it is, I will miss Professor Smith. He made me think harder and better, and he made the world a more interesting place, even if it was always in a low-key, reasonable, way. Thanks, and farewell.

Events Next Week

I’ll be visiting McGill and Yale next week. Come say hello!

Next Tuesday, the 29th, I’ll be taking part in a discussion on “Conscience and the Constitution in Canada” at the McGill Faculty of Law (specifically, in NCDH 101). I will be speaking on the conflict between freedom of conscience and state authority, in particular as it played out in the litigation about the constitutionality of the Canadian citizenship oath, about which I have written a great deal here. The other participant will be Brian Bird, a doctoral candidate at McGill, who will be speaking about the legal history of freedom of conscience in Canada. The fun starts at 1PM and goes on until 2:15.

By the way, this event is organized by the Runnymede Society, which is a new group that aims at fostering conversations and debates on matters constitutional in Canadian law schools, and in particular at presenting students with a broader range of views and perspectives than they might otherwise be exposed to. I think it is a very exciting and useful project, and I am very excited to be taking part in one of their first events. Thanks to the Runnymede Society’s president, Joanna Baron, for inviting me!

And next Thursday, the 31st, I will be moderating a panel on “Popular Sovereignty and a Québec Constitution” at the Symposium on Does Québec Need a Written Constitution?,which will be taking place at Yale, in Luce Hall (LUCE), Room 203. The proceedings start at 9:45, and the panel that I’ll be chairing ― and on which Maxime St-Hilaire (a sometime guest here at Double Aspect), Mark Walters, and Nelson Wiseman will be speaking starts at 1PM. Many thanks to Richard Albert, the convener of the Symposium, for inviting me to do this.

If you are able to attend either event, please come say hello!