1. See Nietzsche, Friedrich Twilight of the Idols, trans. Hollingdale, R.J. (Middlesex, Eng.: Penguin Books, 1908) at 99’100.Google Scholar

2. See Kelman, Mark “The Origins of the Crime and Criminal Violence” in Kairys, D. ed., The Politics of Law (New York: Random House, 1982) at 214–29.Google Scholar

3. See Summary of the Report of the Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (Ottawa: Minister of Supply and Services Canada, 1987) at 6: this Summary contains proposals by the Canadian Sentencing Commission to decrease the use of incarceration generally or to restrict the use of incarceration to a limited range of offences, to lower the ceiling on maximum terms of imprisonment for many serious offences, or to increase the availability of dispositions oriented toward therapy and rehabilitation, such as “community sanctions“ and conditional discharges for lesser offences. See also Law Reform Commission of Canada, Working Paper #44: Crimes Against the Environment (Ottawa: Law Reform Commission of Canada, 1985) at 3.

4. Sentencing Reform, ibid, at 18.

5. Nietzsche, Friedrich The Will to Power, in The Portable Nietzsche, trans. Kaufman, W. (New York: Viking Press Inc., 1968) at 455.Google Scholar

6. Invitation to First Conference on Critical Legal Studies, Jan. 17, 1977.

7. See Kelman, Mark A Guide to Critical Legal Studies (Cambridge, Mass.: Harvard University Press, 1987) at 269–95.Google Scholar

8. Ibid. at 269.

9. Ibid, at 3.

10. Ibid, at 7–8, 269.

11. I will use the word “liberalism” throughout this essay in the broadest sense of which George Grant speaks in his English-Speaking Justice; namely, to describe the belief that “political liberty is a central human good”: see Grant, George English-Speaking Justice (Notre Dame, Indiana: University of Notre Dame Press, 1985) at 4.Google Scholar

12. See Locke, John On Civil Government, chs. V and IX, in Commins, S. & Liscottin, R.N. eds, Man and the State: The Political Philosophers (New York: Random House, 1947).Google Scholar

13. Kelman, supra, note 7 at 4.

14. Ibid, at 3.

15. See Popper, K.R. The Open Society and its Enemies, vol. 2 (Princeton, N.J.: Princeton University Press, 1966), c. 17 at 118.Google Scholar In this chapter he explains how law and politics are inextricable from the Marxist point of view insofar as it sees any given legal system arising from a capitalist based socio-economic structure as a kind of “super-structure” which is built upon, and which gives expression to, the productive forces of the free-market system operating at that time.

16. Nietzsche, Friedrich On the Geneology of Morals, trans. Hollingdale, R.J. (New York: Random House, 1969) at 76.Google Scholar

17. Ibid.

18. Ibid.

19. Nietzsche, Friedrich Beyond Good and Evil, trans. Hollingdale, R.J. (Middlesex, Eng.: Penguin Books, 1972) at 175.Google Scholar

20. Nietzsche, supra, note 16 at 76.

21. See Kennedy, Duncan “Towards a Critical Phenomenology of Judging” in Hutchinson, Allan C. & Monahan, Patrick eds, Rule of Law: Ideal or Ideology (Toronto: Carswell, 1987).Google Scholar

22. See Dworkin, Ronald Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1977) at 272–73.Google ScholarPubMed

23. Dostoyevsky, Fyodor Crime and Punishment, trans. Monas, Sidney (New York: The New American Library, 1968) at 253.Google Scholar

24. Nietzsche, supra, note 19 at 201.

25. See Sentencing Reform, supra, note 3 at 3; see also Issues in Regulatory Enforcement, Vol. 1: Responses to Non-Compliance with Legal Standards, edited proceedings of a Consultation Seminar, May, 1998.

26. Law Reform Commission of Canada, Working Paper #3: Studies On Sentencing (Ottawa: Law Reform Commission of Canada, 1974) at 8; see also Law Reform Commission of Canada, Fear of Punishment: Deterrence (Ottawa: Minister of Supply and Services Canada, 1976) at vi.

27. Studies on Sentencing, ibid, at 11.

28. Ibid.

29. Ibid. at 9.

30. Ibid. at 22.

31. Ibid. at 23.

32. Horwitz, Morton J. “The Changing Common Law” (1985) 9 Dal. L. J. 55;Google Scholar see also Risk, R.C.B. “Lawyers, Courts, and the Rise of the Regulatory State” (1985) 9 Dal. L. J. 31.Google Scholar

33. The Criminal Code of Canada, R.S.C. 1985, C–46, s.750.

34. Dostoyevsky, supra, note 23 at 260–64.

35. Ibid, at 73, 260.

36. Kelman, supra, note 7 at 269.

37. In 1984 the British Columbia Supreme Court sentenced the five individuals known as “the Squamish Five” to life imprisonment, twenty-two years, twenty years, ten years, and six years, respectively, for conspiracy in respect of certain accusations of attempted robbery and arson. See R. v. Taylor (1983), 8 C.R.R. 29 (B.S.S.C); R. v. Taylor (1984), 40 C.R. (3d) 222 (B.S.S.C).

38. See “Politics and Sentencing: A Statement on the Squamish Five” (1985) 19 This Magazine at 34. The authors state here that “it is beyond question that the [Squamish Five] were motivated by a sincere concern for the dangers of nuclear war and the destructiveness of pollution and pornography.”

39. Department of Justice, Sentencing Practices and Trends in Canada: A Summary of Statistical Information (1983), as quoted in “Politics and Sentencing”, ibid.

40. Radzinowicz, Leon “The Political Offender” in A History of the English Criminal Law, vol. 5 (London: Stevens & Sons, 1948) at 401.Google Scholar

41. Durkheim, Emile The Rules of Sociological Method, 8th ed., trans. Solovay, S.A. & Mueller, J.H. (Glencoe, III.: Free Press, 1938), as cited in Radzinowicz, ibid, at 401.Google Scholar

42. See Guizot, F. De la Peine de Mart en Matière Politique, Paris, 1822, as cited in Radzinowicz, ibid. at 401.Google Scholar

43. Amos, Sheldon as quoted in Radzinowicz, “The Political Offender”, supra, note 40 at 403.Google Scholar

44. Dostoyevsky, supra, note 23 at 257.

45. The problem here is to establish a test for determining whether an ostensible “political” cause is advanced or retarded, and for that matter, for determining what political system is most “fair”, “just”, “correct”, “humanitarian”, etc. Obviously this problem is beyond the scope of this paper.

46. Nietzsche, supra, note 16 at 71–73.

47. Ibid. at 72.

48. Kelman, supra, note 2 at 216.

49. Gairdner, William F. The Trouble With Canada, (Toronto, Canada: Stoddart Publishing Co. Ltd, 1990) at 340.Google Scholar

50. Ibid, at 332, 352.

51. Ibid, at 341.

52. Ibid, at 356–59.

53. Ibid, at 340, 342.

54. Ibid. at 343.

55. Ibid.

56. Ibid. at 358–59.

57. I am referring here to Gairdner’s preference for those philosophical theories which tend to support, as he calls it, “our traditional way of life”, or “the popular view of right punishment” and “the popular wisdom of how society works”: ibid, at 343. In other words I am labeling Gairdner a political conservative as opposed to a political radical.

58. Nietzsche, supra, note 1 at 98–99.

59. Gairdner, supra, note 49 at 343.

60. Dostoyevsky, supra, note 23 at 261–62.

61. Franke, Michele Responses to Non-Compliance with Legal Standards, supra, note 25 at 7.Google Scholar

62. Kelman, supra, note 2 at 219.

63. Kelman, ibid, at 226.

64. Ibid.

65. For the purposes of this essay I will define “criminology” simply as the study of single or competing theories of the psychological and sociological origins of crime.

66. Kelman, supra, note 2 at 227.

67. Ibid, at 222.

68. R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299.

69. The Queen v. Pierce Fisheries Ltd., [1970] 5 C.C.C. 193, 12 D.L.R. (3d) 591, [1971] S.C.R. 5 [hereinafter Pierce Fisheries cited to C.C.C.].

70. The Queen v. Pierce Fisheries Ltd., supra, at 199.

71. According to Dickson, J. (as he then was) in R. v. Sault Ste. Marie, supra, note 63 at 1331, it is the “directing mind and will” of the corporation (likely the president) which will be accountable in an action of this kind.Google Scholar

72. R. v. Sault Ste. Marie, supra, note 63 at 1299.

73. At issue in Pierce Fisheries was the sale of undersized lobsters contrary to The Fisheries Act, R.S.C. 1952, c. 119.

74. Kelman, supra, note 2 at 224.

75. Ibid, at 224.

76. Ibid, at 225.

77. Ibid, at 224.

78. Ibid.

79. Ibid.

80. Ibid. at 226.

81. Ibid.

82. Brown, Richard University of Ottawa, Responses to Non-Compliance with Legal Standards, supra, note 25 at 13–14.Google Scholar

83. See Law Reform Commission of Canada, supra, note 3 at 3–5.

84. Ibid. at 5.

85. Kelman, supra, note 2 at 220.

86. Ibid. at 224–25.

87. Katz, William F. “After the Deconstruction: Law in the Age of Post-Structuralism” (1986) 24 U.W.O. L. Rev. 51 at 60.Google Scholar

88. Grant, George English-Speaking Justice, supra, note 11 at 6.Google Scholar

89. See William Katz supra, note 87; especially his reference to Denning’s, Lord statement in Lloyd’s Bank v. Bundy, [1974] 3 All E.R. 757 at 763, which posits the “general rule” of support of private autonomy through the inviolability of contracted agreement.Google Scholar

90. See Denning’s, Lord reference in Lloyd’s Bank v. Bundy, ibid, at 767, to the normal “inequality of bargaining power” between contractual parties.Google Scholar

91. Nietzsche, supra, note 16 at 65.

92. Nietzsche, ibid, at 62–63; see also Law Reform Commission of Canada, Fear of Punishment, supra, note 26 at v: the author states here that ‘[the] root of the very word “punishment” meant “monies paid in exchange for harm done”, stressing an attitude that we now call restitution or reparation’.

93. See Solle v. Butcher, [1950] 1 K.B. 671; Hasham v. Zenak, [1960] A.C. 316; Beswick v. Beswick, [1968]A.C. 58.

94. See Donoghue v. Stevenson, [1932] A.C. 562, 101 L.J.P.C. 119,48 T.L.R.494, 37 Com Cas 350, (1932) S.C. (H.L.).

95. Popper, supra, note 15 at 234.

96. Popper, ibid.: see also Dworkin, supra, note 22 at 272–73.

97. Popper, ibid.

98. Ibid, at 238.

99. Ibid, at 236.

100. See e.g., Hart, H.L.A. “Positivism and the Separation of Law and Morals” (1958) 71 Harv. L. Rev. 593.Google Scholar

101. Kelman, Mark “Interpretive Construction in the Substantive Criminal Lawȝ (1981) 33 Stan. L. Rev. 591 at 667.Google Scholar

102. Kelman, ibid, at 593–94.

103. L.E.D. v. The Queen (1989) 2 S.C.R. 111 [indexed as D. (L.E.) v. R.: hereinafter L.E.D. cited to S.C.R.].

104. Regina v. Robertson (1987), 33 C.C.C. (3d) 481.

105. As per Sopinka, J. in L.E.D., supra, note 103 at 125–26:Google Scholar “The use of the term “background” in Robertson was merely a succinct method of describing the relevance of the evidence in that case.”

106. Supra, note 103 at 133.

107. Ibid. at 115 (my emphasis).

108. Ibid. at 129 (my emphasis).

109. Ibid. at 134.

110. Kelman, supra, note 101 at 665–66.

111. Ibid. at 670.

112. Ibid. at 667.

113. Ibid. at 666.

114. Nietzsche, supra, note 19.