A maverick in the making

Each year seems to bring a new honour to Allan Hutchinson (left), associate dean of research and graduate studies at York’s Osgoode Hall Law School. Two years ago, it was his election as a Fellow of the Royal Society of Canada. Last year, he was appointed to the York Board of Governors. This year during York’s Spring Convocation, Hutchinson was named a distinguished research professor by the University.

Hutchinson’s page on the Osgoode Hall Law School Web site provides little more than a snapshot of a distinguished career. Since coming to Osgoode in 1982, he has managed to publish some 60 articles and reviews, and 10 books. Even his critics, and there are many, acknowledge Hutchinson as being one of the leading voices of critical legal studies in Canada.

His curriculum vitae might lead one to expect a lofty figure who stands on his dignity, but the real Hutchinson is hardly that. “Call me Hutch! Have you ever seen Coronation Street?” he asks in his northern English lilt. “Well I’m from Coronation Street. My father was a bus mechanic and my mother was a clerical worker.”

True to his origins, Hutchinson’s scholarship has investigated law not as an idyllic creature that passes its time in discourse on some distant isle, but as a living and complex beast indivisible from the here and now. The traditional notion that law and politics can be severed strikes Hutchinson as absurd. “There is no more political claim,” he says, “than the law is not political.”

It is from this perspective that Hutchinson has ventured into sacred Canuck territory, suggesting that the Charter of Rights and Freedoms may not be the refuge of the poor and the oppressed that Canadians have been led to believe. Citing the recent Chaoulli case that successfully used the Charter to assert the right to private health care, leading to strong concerns about the dilution of the universality of health care, Hutchinson says, “We now need to turn to the courts for important social and political decisions and it seems to me hardly a progressive strategy.”

Chaoulli, in Hutchinson’s eyes, is not only an example of an end-run around meaningful social discourse but proof in the pudding of the Charter’s role as a social tool. “Much of my work,” Hutchinson continues, “has been devoted to saying that the Charter has been a device that appears to offer a lot but gives very little and, not surprisingly, it has tended to be used by the haves and not by the have-nots.” Hutchinson’s clear eye for law within society is quick to see that a state, even a benevolent one like Canada, is not quick to surrender the powers and perks of its most powerful citizens.

Above all, Hutchinson sees himself as a pragmatist. Recalling one of his earlier books, titled Dwelling on the Threshold, Hutchinson describes his ideological flight path as “locating yourself in a position where you can remain involved.”

Suffering the “criticism of co-optation” is, in his view, a small price to pay. “The alternative is to leave the threshold and go out into the wilderness,” he says. “Both politically and temperamentally I didn’t want to do that. I think you try to occupy a position that engages the centre and try to pull the threshold out further.

“And of course,” Hutchison admits, “one doesn’t always get it right.” An academic who has also tested himself in the courtroom, most recently before the Ontario Court of Appeal, he clearly prefers deeds with deficiencies over the perfection of passivity: “I’m not keen on people who just sit in the bleachers. You’ve got to get on the field and do it. I’m a doer as much as a thinker.”

But not even pragmatism is simple with Hutchinson. When asked to comment on the recent cases involving terrorism and democratic rights, there is little hedging or compromise. He believes that the reluctance of courts to intervene in prolonged detentions without charge will be seen as a very dark era in Canadian justice.

“It seems to me if we’re fighting for anything we’re fighting for some ideal of democracy and we must therefore uphold democracy in our fight against terrorism whatever that means,” he states with passion. “National security is a factor but it’s not something that can always be used to trump democratic rights.”

Turning to the political aspect, Hutchinson remarks, “We need to develop a discourse that doesn’t set rights against national security. The nation we wish to secure is a nation that has rights.”

Hutchinson, the administrator, displays a similar passion for democratic notions ensuring that “the law school class remains as diverse and as open to people with talent as possible.”

Acknowledging that when he went through his postsecondary studies he “didn’t pay for university nor did anybody else,” he is troubled by government funding cuts. Again, giving the nod to reality, he notes that there are only two options available – money from private sources and raising tuition. The latter must be done to cover the current shortfall in private funding. He emphasizes strongly, however, Osgoode’s target to set aside 35 per cent of tuition for bursaries and student funding.

As a scholar and writer, Hutchinson aims for what he calls “the well-crafted piece.” And, as he reaches yet another plateau of excellence in a vigorous career, the same term can be borrowed to describe his ongoing investigation of law and democracy. As he enjoys a breather after completing his study of corporate governance, he reflects on his decision to pursue law, “I realized from the word ‘go’ what an incredibly privileged life this was. If I couldn’t become either a footballer or a rock star, being a law professor was a pretty good third place to me.”

Article and photograph by YFile graduate assistant Chris Kurata, a York PhD candidate in English.