In Memoriam I explained how the Law Commission of Canada developed a law reform model that sought to respond more effectively to the gap between law and reality and to democratize the process of law reform itself. The Law Commission situated its work directly at the interstice between law and action and experimented with different ideas about democratizing its research agenda, its networks of partners and its output. The LCC decided to firmly engage with interdisciplinary and community-based scholarship in the definition of its plan of action (from legal categories to dynamic social facts), in its research process (from legal expertise to social sciences and humanities and to action-based research) and its product (from legislative responses to mechanisms of empowerment). In Memoriam II is organized around four themes: first, that a democratized law reform project requires a process of “translation” between different audiences, second, that it necessarily implies a painful exercise of destabilization of the intellectual status quo, third, that it must support the empowerment and capacity building of the different social actors to embrace and demand change and fourth, that it must do so with care. The paper includes testimonies and case studies derived from the work of the LCC.

La relativisation de la souveraineté est à la fois au cœur de la critique du pluralisme juridique et le résultat concret de la globalisation néolibérale. Cet article propose ainsi la notion d’écosystème normatif comme milieu pour la structuration des communautés politiques. Il énonce trois hypothèses concernant la configuration de l’écosystème normatif extractif canadien : 1) des enjeux constitutionnels y sont traités par le biais de relations contractuelles entre entreprises et communautés autochtones; 2) la responsabilité sociale des entreprises y fait office de régime de véridiction; et 3) l’impératif d’efficacité y prend préséance sur les visées téléologiques en présence. Ces hypothèses configurent une gouvernementalité moralisante peu amène aux communautés politiques. Cet article propose donc de renouveler la charge critique du pluralisme juridique en insistant sur l’hétéronomie de la norme comme condition de possibilité de la liberté politique.

In history of legal ideas of the last generation in Canada, legal pluralism deserves an important place. There is a Quebec genre in the legal literature on pluralism that, for reasons one might well suspect, is less well-known elsewhere. The scholarship of Professor Jean-Guy Belley, one of the leading figures in the field, is deserving of a wider readership among non francophones. A translation on one of his most important papers, published at a critical moment in his personal development as a scholar, is presented here in the hope of introducing his work to new readers.

This article compares the two most significant paradigm shifts in the administration of Aboriginal affairs in Australia's Northern Territory. The Welfare Ordinance 1953 (NT) constituted a then-unique attempt to reclassify the diminished legal status of most indigenous Territorians as justified not by their racial heritage but by their level of social need, while the 2007 legislation behind the “Northern Territory intervention” has jettisoned formal racial neutrality through a campaign to curb the breakdown of “community standards and parenting behaviours” in many remote indigenous communities. The authors argue that while both initiatives had similar fundamental aims—encouraging remote Aboriginal people to adopt social habits generally evident in non-indigenous society—the decision to jettison racial neutrality has ushered in a new era of race relations in Australia, in which race has openly and formally been reestablished as a marker of legal inferiority.

The following article attempts to summarize the results of a study of Canadian criminal case law materials relating to aboriginals accused over the last hundred years. The goal of this analysis was to ascertain the openness of Canadian state law to certain forms of legal pluralism. The concept of “dialogism» was used to measure the intensity of recognition or application by a central legal order (Canadian criminal law) of values and norms pertaining to another legal order (legal concepts of aboriginal peoples). Analysis of the case law shows Canadian criminal law slowly evolving towards a weak form of legal pluralism. Early decisions by the courts denote an absence of cultural dialogue, with the exception of those of the circuit court in the Northwest Territories. The more recent case law indicates that if courts are reluctant to recognize the relevance of aboriginal values in the matter of jury selection, trial location and criminal liability, they are more and more receptive to legal pluralism on sentencing issues, where a form of power-sharing is possible between judges and native communities.

This article considers the problems associated with the international regime addressing the transfrontier movement of hazardous waste. Significant gaps exist within the current regime, it is argued, because historically, policy-making has been predominated by the concerns of developed nations, to the detriment of the developing countries most likely to be the recipients of the waste. To better understand why and how this is the case, the regime is examined through the lens of Critical Race Theory (CRT), a theory advocating, among other things, the need to recognize the context in which the problem is set, outside of the confines of a legal structure defined and changed only incrementally by the enfranchised. The paper begins with an overview of why the problem is of concern, as well as sets out the tenets of CRT to be used as tools of analysis throughout the paper. The paper then highlights the international, regional and bilateral measures that exist, attempting to identify some of the gaps in the regime via application of the tenets of CRT. The final section of the paper offers three suggestions as topics to consider in future negotiations: a call for an ameliorated Prior Informed Consent regime, the establishment of an international fund mechanism and potential options for remedial tribunals.

The use of human and animal subjects in the field of biomedical research is universally accepted. Without such methods, we are told, what would happen to scientific progress and the relief of suffering in the world? Be that as it may, one fact remains: by its very nature, experimenting on human beings and nonhuman animals demands that we protect those who are the subjects of those experiments. In Canada, what kind of protection is offered to human and animal subjects? In the absence of federal legislation, and in place of it, voluntary systems of control have been put in place by the scientific community. These systems are based on the establishment of institutional ethics committees. They are complemented by an a posteriori control of experiments. In this article, the authors describe and analyze these sytems of control. Indeed, although they appear to be reassuring, these systems nonetheless reveal certain weak points.

Drawing attention to the legal and psychoanalytic genealogy of reparations, this article examines the relationship between reparations and racial difference through an analysis of the Canadian Broadcasting Corporation’s documentary series 8th Fire: Aboriginal People, Canada and the Way Forward. The representational life of reparations in liberal settler colonialism is a repository for addressing the broader landscape of legality—sovereignty, self-determination and anti-colonialism—beyond the confines of international human rights mechanisms. This article considers the following questions: How do forms of testimony animate connections between reparations and racial difference? In what ways do visual and representational practices operate through racial and colonial temporalities central to reparative juridics? What is the relationship between reparations and possibilities for anti-colonialism? I argue that the social, legal, cultural, and representational life of reparations in settler colonialism is structured by racial difference.

The implemention of a liberal normative system during the XIXth century was a phenomenon whose complexity we are still grappling with today. Concretely, for societies undergoing deep political and economical mutations this implies a capacity to adapt laws to meet the new imperatives of democracy and the market economy, the two central forces that effect the mode of regulation employed throughout Western societies. The difficulties of implementing a legal system and the development of legal institutions are compounded by the historical weight of this process. The freedom of association which is at the heart of the liberal regime brings to light a potential contradiction between the rights of individuals and of collectivities. The author exposes the evolution of this contradiction and its implications.

This paper outlines and critically assesses some of the principal attempts to explain state law making in Canada in terms of its constitution as an advanced capitalist democracy. While generally retaining a conception of relative autonomy of the state, stress is laid on the fact that this can be no more than an heuristic approach. Because it cannot be known in advance whether specific conditions represent an authentic threat to capital reproduction and because interpretation of such conditions is a necessary part of the mobilisation of resistance to such conditions, the so-called limits to autonomy represent no more than a shorthand for politically invoked strategies of opposition by agents of capital. Moreover, focus on relative autonomy and the concept of limits focuses attention on the externalities of state agencies and constitutes these as distinct from the processes relativising state autonomy. The paper therefore works toward a conceptualisation of discursive and non-discursive practices which tend to generate capitalistic-reproductive actions by state agencies.

Suite à la loi 101, la Politique québécoise du développement culturel a visé à faire en sorte que la culture québécoise soit commune à tous et puisse s’enrichir d’apports en provenance des minorités culturelles. Puis, divers écrits ont contribué à faire évoluer le concept de convergence culturelle, à le critiquer ou à répondre à ceux qui le critiquent. À la lumière de cette politique et de ces écrits, on peut associer ce concept à sept principes : lien consubstantiel entre la langue française et la culture québécoise, impératif de la préservation du statut majoritaire de la culture québécoise et de la langue française, refus de l’assimilation des minorités culturelles, intégration, appropriation identitaire, mixité, et rôle vital des œuvres et productions artistiques. Reprenant ces principes et respectant certains critères de la légistique (clarté, cohérence, concision, véracité), le présent article propose le texte d’une loi-cadre sur la convergence culturelle, et la situe théoriquement.

The essay promotes an approach to legal decision-making informed by the Geertzian notion of the ethnographic imagination as a means of understanding and adjudicating issues marked by cultural difference. The reflexivity of this approach–i.e., the way it focuses judicial awareness on the role of mainstream culture and the law itself in the construction of matters before the courts—is most critical in cases involving Aboriginal persons. The discussion proceeds in three steps. First, an historical survey of the relationship between the Canadian state and Aboriginal people highlights the cultural aspects of substance abuse in the case of Aboriginal women. Next, statistical data is synthesized to gain insight into the construction of the substance-abusing Aboriginal woman in social and legal discourse. Finally, a close study of the decisions in Winnipeg Child and Family Services v. D.F.G. reveals the enduring role of unexamined assumptions about race in judicial decision-making and the constraints placed on adjudication by traditional liberal rights discourse. The resulting erasure of cultural identity, the deficiency of the final judgment, and the potentially harmful consequences of efforts to correct its shortcomings demonstrate how the absence of culturally-reflexive judicial imagination can threaten the very meaning of adjudication for parties who are defined by culture and/or race in the eyes of society and the law.

Through the journey of one symbolic legal institution—mahr (a form of dowry)—the article follows the ways in which Islamic marriage has travelled to Canada, the United States, France, and Germany, offering a panoply of conflicting images, contradictions, and distributive endowments in transit from Islamic family law to Western adjudication. The author emphasizes the importance of ensuring that distributive consequences, rather than recognition, occupy a central place in the assessment of the legal options available to Muslim women in Western courts. This article represents an important methodological contribution to the debates over the role of identity politics and the (im)possibility of legal transplants in comparative law. The author's argument is that mahr cannot travel to Western liberal courts without carrying with it a very complex interaction among several parties whose interests are often opposed as to its recognition. A legal realist and distributive analysis of Islamic marriage is crucial, she argues, because mahr is often used by the parties as a tool of relative bargaining power in negotiating contractual obligations related to the family. Moreover, Islamic law travels with a multiplicity of voices, and it is this complex hybridity that will be mediated through Western law upon adjudication.

Aboriginal perspectives are often not viewed as persuasive or reasonable in contemporary political and legal discourses, and Aboriginal people are compelled to articulate their claims in the normative vocabulary of the majority. Many see this as an injustice. Part I of this essay argues that some incarnations of the idea of public justifiability, a cornerstone of political theory, provide a normative justification for that injustice. Part II argues that the idea is at work in the Canadian courts, even as judges attempt to create space for Aboriginal views. The ambivalent stance of the courts is explored through a case study.