In their introduction to Law in the Domains of Culture, Austin Sarat and Thomas Kearns write: “[l]aw and legal studies are relative latecomers to cultural studies. To examine [law in the domains of culture] has been, until recently, a kind of scholarly transgression.” The same could be said in reverse: cultural studies (including anthropology) are a relative latecomer to law and legal studies, but in the last few decades there has been a striking irruption of cultural discourse in the domain of law.

It is as if the acquisition of some degree of “cultural competence” has become a duty in legal circles. Not only are there seminars and courses in “cultural sensitivity” for judges, lawyers, and law enforcement officers, but “the culture concept” now informs many judicial decisions regarding Aboriginal rights, and “the cultural defense” (while hotly contested by some, and still lacking official approbation) has become a feature of numerous criminal trials involving immigrants. Interestingly, the Canadian Charter of Rights and Freedoms refers to “the multicultural heritage of Canadians”, and makes the preservation and enhancement of this heritage a condition of its own interpretation.

This article focuses on the relationship between administrative discretion and the rule of law, showing that administrative discretion properly conceived is not only compatible with a particular understanding of the principle of the rule of law but could also become a vehicle allowing the executive to express its commitment to that principle. In the author's view, this is possible if, first, discretion is conceived through the metaphor of a dialogue between rulers and ruled; and, second, we endorse a substantive understanding of the rule of law that views all three constituents of the state – legislative, judicial, and executive branches – as involved in the project of preventing arbitrary action by public powers. The article explores these dynamics in the concrete setting of the author's experience as associate dean of a law school, in order both to see how the theoretical model of dialogue translates into practice and to identify the particular aspects of the theory that might require further inquiry and empirical research.

A common misconception is that land on Canadian Indian reserves is collectively owned by the band. In reality, individual band members can access four types of private property regimes on Canadian Indian reserves. This paper looks at one of these regimes, Certificates of Possession (CPs), to determine the benefits and consequences of CPs for economic development on Canadian Indian reserves. In particular, the paper focuses on how Six Nations band members have been able to use CPs to get around the seizure for debt restrictions in the Indian Act to acquire mortgages to build and own their own housing. The paper finds that CPs, in conjunction with band and/or government support, may provide a practical solution for tackling the housing problems that face many reserves in Canada.

Mediation and other forms of Alternative Dispute Resolution as conflict resolution mechanisms are being embraced widely by legal regimes in criminal law, family law, labour law, administrative law, and civil law areas. In this way, frustration with inadequacies of the legal system and an incipient crisis in legitimacy due to delay, expense and impersonality are contained, and control over dispute resolution is reasserted by the legal system. But in the process, these community-based practices also undergo an institutionalising transformation or “rationalisation” which removes them from their social framework and makes them into technical forms of conflict dispute resolution. This article uses an Habermasian analysis to contend that policymakers, legislators, professional and quasi-professional practitioners are thus systemically colonizing potentially liberatory social practices and transforming them into a “technique” where practices are formalised and strategies are imposed on conflict to produce determinable outcomes.

This article examines the persistence of the handshake in business circles despite its implication in the spread of communicable disease in contemporary pandemic culture. An examination of business etiquette discourse suggests that even during disease outbreaks or flu season, the business handshake remains an important visual and haptic legal gesture. While it may no longer produce a binding legal contract, it stages the parties as contractable subjects, as claiming the status of autonomous individuals committed to defining their intersubjective relationship through the norms of contract. The business handshake thus operates as a cultural site for the complex interaction of bodies and law, and the production of masculine, haptic-legal subjectivity.

Guided by Weiner’s (1993, Am Psychol 48:957-964) attribution theory of social motivation, we examined perceptions of exonerees. Specifically, we examined whether biased police procedures impacted perceptions of responsibility, emotional reactions, and willingness to assist exonerees. Participants read a vignette involving an exoneration due to either a false confession or an eyewitness misidentification with police practices (biased vs. unbiased) manipulated across participants. Findings corroborate that participants hold more negative views of exonerees who falsely confess than exonerees who were mistakenly identified by eyewitnesses. Moreover, when police bias was high, participants were angrier at the police and less likely to perceive the exoneree as responsible for the wrongful conviction—especially when false confessions were involved. The findings are discussed in light of Weiner’s social motivation theory, and in regards to improving attitudes towards individuals who have been wrongly convicted.

In 1998, the three major government funding councils put in place the Tri-Council Policy Statement (TCPS) to regulate all research involving humans in Canada conducted at institutions funded by the councils. This article examines the process of developing the TCPS, a historic and very important document in Canada's research ethics landscape, and the application of the democratic values of legitimacy, transparency, representation, accountability, and community engagement in that process. The authors argue that efforts were made to ensure basic democratic values in the process but that these attempts should have been taken farther. This examination is a timely exercise in light of the new draft now being prepared to replace the current version of the TCPS. The authors also consider this ongoing process of establishing a new edition and reflect on lessons to be learned.

The paper explores the possibilities and perils of an interdisciplinary approach to legal studies emerging as an alternative intellectual paradigm to the doctrinal tradition within legal scholarship. The privileged status accorded to the doctrinal tradition within the legal academy is sustained by its continued importance in providing a link between law as a field of intellectual inquiry and law as a field of professional practice. Despite the promise of a more pluralistic intellectual climate within the legal academy, it seems unlikely that an interdisciplinary approach to legal studies will succeed in challenging the preeminence of legal doctrine as the primary source of professional-knowledge claims about law. At the same time, however, any attempt to claim legal studies as a separate field of intellectual inquiry outside the legal academy confronts many of the same doubts about the nature of law as a unitary object of knowledge as the doctrinal tradition from which it seeks to distance itself. The paradox of the legal studies project is that whenever it tries to free itself from the embrace of the doctrinal tradition, it confronts epistemological doubts about the conditions for its own existence. It appears, therefore, that the legal studies project is destined to continue its labours in the shadow of the law.

This article draws on Cohn and Kremnitzer's multidimensional analysis of judicial activism and applies the analysis in the Canadian context. The analysis is conducted in the wake of recent Supreme Court decisions giving the police the power to conduct sniffer-dog searches. That case context serves as a substrate to reveal the utility and limitations of a multidimensional approach. While recent scholarship on judicial activism has focused on quantifying activism over time, court composition, and constitutional issues, this article contends that there is potential to introduce even more texture into activism scholarship by paying attention to the interstitial details of judicial reasoning rather than focusing on the disposition alone. This textured approach accepts that what the Court says in these interstices is important because it is part of a discussion about core constitutional principles. Activism scholarship is informed by an investigation into deviations from one's particular allegiance to constitutional norms. The nomenclature of these norms is relatively certain, yet their exact definition remains open to vigorous debate. This race for content lies at the heart of much activist-based critique. Multidimensional analysis can help form the language of this conversation, aid in giving content and order to debates, and help us to discover our normative constitutional content. This content is the starting point for critical evaluation of our constitutional norms.

After analyzing the characteristics of prison institutions and the traditional role of the law in such a totalitarian legal order, the author attempts to identify the social factors and movements which, since the end of the 1970s, have contributed to the emergence as norms of fundamental rights for prisoners. She posits that recent developments have resulted from the prisoners' rights movement battling before the courts. As the courts developed criteria to judge the legality of practices or decision-making processes, Canadian legislators, in the course of the 1980s, gradually integrated these jurisprudential requirements. Judicial intervention in Canadian prison law has had a significant impact on the development of new norms of prison justice, establishing prisoners' fundamental rights and the duty to treat prisoners fairly.

The State's resistance to making prison law agree with the Charter of Rights and bring women's carceral conditions closer to the male norm is illustrated in a recent comparative research on 24 prisons for women in eight advanced countries. If that conclusion was not unexpected, despite the fact that the countries and establishments had been selected for being progressive and very ‘humane’ ones, and notwithstanding the relentless claims presented by feminist groups and human rights advocates, what came as a surprise was that avant-garde initiatives like mixed prisons, mother-and-child units, well-equipped modern programs in women's prisons proved to be, if possible, more gendering in their actual effect than old traditional male arrangements. Using materialist feminism and discourse analysis to interpret her data, the author concludes that women's incarceration is a powerful gendering strategy and a form of appropriation of women by State's apparatuses to men's advantage.

Abstract—This essay documents how the city of Oshawa, Ontario engaged in a campaign of “civic sanitation” through the enactment of a public nuisance by-law that constructed the discursive form of the loiterer. The relationship between visualization and regulation inherent in this “vision” of social hygiene is examined. The author concludes by reflecting on the forged character of law in late modernity.

In February 1991, the Supreme Court of Canada released R. v. Butler, a decision which upheld Canada's Obscenity Law by recognizing a relationship between pornography and sex inequality. This paper outlines the arguments made by the Women's Legal Education and Action Fund (LEAF) as intervenors in Butler, reviews how this decision could be interpreted, and offers for discussion arguments on some of the issues not addressed in Butler. In particular, it examines how LEAF's position affects lesbians and gay men and how the Butler decision can be used to advance equality arguments for sexual minorities. Given that Canada Customs have continued to discriminate against lesbians and gay men by targeting materials for these communities, feminists and other equality seekers must participate in the debate on how Butler will be interpreted and enforced.

To systematically and legally regulate the growing number of rural-urban internal migrants, the Beijing municipality of the People's Republic of China, promulgated a series of discriminatory laws and regulations against them centered around individual business operator license applications. Based on fieldwork evidence, this article demonstrates that migrants, a heavily disadvantaged and marginalized social group, have forgone legality and devised creative coping strategies in dealing with the discriminatory legislation. These strategies include direct evasion of the law, collusion with local business entities to avoid the law, and downright corruption. In analyzing the context of these unintended consequences, this article argues that the discriminatory law itself constitutes their vital source. It suggests that the so-called advancement of the rule of law in China actually is accompanied and plagued by the evasion of law, collusion, and corruption, a process full of unintended, paradoxical, and perverse consequences.

Quantitative analyses have the potential to contribute to transitional justice mechanisms, via empirical evidence supporting the memory of victims, allocating proportional responsibility among perpetrators, determining legal responsibility, and supporting historical memory and clarity. However, most data available in transitional justice settings are incomplete. Conducting quantitative analyses relying solely on what is observable and knowable leads to not only incomplete but often incorrect analytical results. This can harm rather than contribute to transitional justice mechanisms. This article outlines different types of data, the ways in which observable data, on their own, are insufficient for most quantitative analyses of interest, presents these limitations via a case study from Syria, and introduces statistical methods to overcome these limitations.

The video and computer game industry now generates profits greater than Hollywood films and pornography, and ranks second in earnings only to the music industry. The most popular games are using more explicit representations of crime, drugs, sex, and extreme violence. Furthermore, with advancements in technology, the violent and sexual content of video games are becoming increasingly realistic and interactive. As a result, independent national debates have been taking place globally as to whether modern video games constitute a new social problem. In this study, we perform an interactive content analysis of the most popular video games and demonstrate that “socially questionable content” is just as prevalent as violent content in the most played video games. In addition, we examine “how” video games are rated by the Entertainment Software Rating Board (ESRB) and issues of voluntary compliance regulation.

Causation analysis is densely political in at least three ways. First, because causation is crucial to our system of attributing moral, legal and political responsibility, causation arguments are advanced for purely instrumental purposes. They do political work. Second, because any particular occurrence is the outcome of an almost infinite number of antecedent events, “but for” causation analysis produces trivial results. A judgement about causal significance is required and will depend, in part, on the goals of the analysis. The choice of goals is political, but unstated goals and hidden assumptions often exclude consideration of some possible causes as significant. These politics of causation need to be made explicit. Third, the institutional setting in which official determinations of causation are made influence the outcome. Hence, it is necessary to explore these as well. Each of these three dimensions of the politics of causation is explored through an analysis of the 1992 Westray mine disaster which killed 29 miners in Nova Scotia, and the official responses to it. It is argued that if the goal is to protect workers and nothing else, then the political-economic context that promotes the creation of hazardous conditions must be considered a significant cause of harmful occurrences. It is unlikely, however, that any of the official responses to the disaster will take this approach.

In this article Jean-Guy Belley examines the dichotomy between individuals and organizations, considered explicitly in connection with the development of the idea of legal pluralism. This idea—not the concept, which came later—had appeared in the early twentieth century, thanks to militant jurists who challenged the dominance of formal positivism and had an interest in legal sociology and anthropology. Their approach fitted in with legal realism (broadly understood), but specifically questioned the central role of the state in the production of law. That initial form of legal pluralism fuelled the renewal of legal thinking and fostered the development of the sociology of law, but it did not lastingly challenge the dominant status of positivism among jurists. In contrast, the “new legal pluralism” that has been rapidly growing in the last decades presents itself as new legal orthodoxy: paradoxically, the idea of legal pluralism, which originally illustrated the quest for intellectual emancipation from the formalist straitjacket (perhaps even emancipation of social life vis-à-vis the state), has turned into a new orthodoxy in the second era of modernity. That legal doctrine is clearly in harmony with the impersonal domination of private legal orders (especially of large economic organizations) over contemporary society.

In Western societies, penal regulation is largely considered the best way to deal with conflicts or, more widely, with trouble. Indeed, penal regulation is seen as one of the most efficient tools for maintaining the cohesion of collective life. However, some research has questioned this efficiency, noting that only a few problematic situations were addressed by the penal system. We can hypothesize, then, that other forms of defining and regulating trouble exist and function outside of any institutional field. The present study develops this hypothesis by analyzing how people experience conflicts in everyday life. In this way, we attempt to discover whether these social modes of identifying trouble still remain and under which conditions this survival is possible.