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Stephen Smith: Drawing parallels

Stephen Smith

“I often tell my students that everything I teach when I teach contract law … they should have learned by the time they were seven or eight..."

Stephen Smith’s teaching and research interests include common law and civil law obligations and legal theory. He has authored two books on contract law - Contract Theory (2004) and Atiyah’s Introduction to the Law of Contract, 6th ed. (2005). Professor Smith received his PhD from Oxford University and taught there for a number of years; he became a full professor at McGill in 2004. In 2008, he was awarded a Killam Research Fellowship from the Canada Council for the Arts.

What notable experiences have informed your teaching?

I’m probably famous, or even infamous, for constantly using my children as examples in the class I teach on legal philosophy and in my basic contract law classes. Now the reason I use examples from my home life – and I also use sports team analogies – when teaching legal philosophy is that I believe, like many people, that law is an authority system, telling you how you ought to behave. It can be wrong, but fundamentally it’s a system that lays down rules for behaviour. So when I use family or sports analogies I ask students, “Why should children obey their parents or athletes obey their coach?” And they typically reply, “Because they know better – they are a type of expert.” And we see this when we look at laws regarding pollution or speeding, for example – we see that they have been put together with some research and expertise.

When explaining the difference between the different courts in the Advanced Common Law Obligations course, I often tell my students that at home I am like the Court of Law – I lay down the rules. And I’m a little unbending. And what happens when my kids don’t like what I’ve said? What do they do? They go to the Court of Equity – my wife! And she sometimes makes exceptions. So I say, “Look, you didn’t eat your vegetables – no dessert. That’s the rule.” And then the kids say, “We actually helped make the dessert today!” And my wife might say, “Okay, in that case we’ll make an exception.”

So I teach that while we need rules and certainty, we also need some flexibility. And every legal system has to work out how to combine these things: our desire for certainty, predictability and clarity, and also our desire for justice in individual cases. I often tell my students that everything I teach when I teach contract law – the fundamental principles – they should have learned by the time they were seven or eight: keep your promises, don’t lie, and give back what’s not yours. That’s basically what law’s all about. Granted, the technical details after that can be difficult, but the essential principles of what we’re trying to do are pretty basic moral principles that the students should know already.

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