This paper suggests that many of Gurvitch's ideas, which were originally presented in an abstract fashion, are still highly pertinent to socio-legal analysis. They may be employed in empirical research in a revised form, which would make them receptive to operationalisation. To this end, I focus on some of the main theoretical ideas developed by Gurvitch, reinterpreting them critically and in the context of the socio-legal research of the last few decades. Then, I apply them to empirical data collected through the author's personal research experience and some other empirical studies. The question prompting this examination is whether Gurvitch's theoretical insights could enhance our understanding of such data and thus open new avenues of socio-legal enquiry.

This article presents a critical examination of the general weight that modern deterrence theory assigns to cost–benefit rationality in its conception of criminal acting out. Following Niklas Luhmann and Spencer Brown, who state that observation means handling distinctions, we reveal what the distinctions in deterrence theory themselves conceal, in particular with respect to these “other rationalities” (that is, rationalities other than rationality defined in terms of cost–benefit calculation), which may, in certain circumstances, have a significant influence on the decision-making process involved in acting out. In empirical terms, based on excerpts from qualitative interviews we conducted with individuals who had committed “serious” crimes, we support this hypothesis by showing the operating procedure for an alternative defined in terms of the rationality of risk. In relation to criminal law, our analysis therefore challenges an entire set of assumptions dear to deterrence advocates; in relation to science, it reopens a now-stagnant debate regarding the criteria for the effectiveness or operationalization of criminal deterrence.

The purpose of this paper is to advance an approach to analyzing decision-making by front line public officials. The notion of discretion in front line decision-making has been examined widely in the law and society literature. However, it has often failed to capture the different kinds and levels of decisions that enforcement officials make. Taking an interdisciplinary approach that draws on political, sociological, and legal analysis, we propose a new conceptual framework, one that draws a sharper distinction between discretion and judgment and teases out distinct levels in the scope and depth of decision-making. We then use this framework to create a conceptual map of the decision-making process of front-line officials charged with enforcing the Employment Standards Act (ESA) of Ontario, demonstrating that a deeper, more precise analysis of discretion and judgment can contribute to a richer understanding of front line decision-making and its social, political, and legal implications.

From the perspective of the systems theory, Gunther Teubner provides a meaningful contribution to the theory of legal pluralism. Borrowing from Max Weber's idea of a polytheism of values, Teubner shows the relevance for contemporary society of the Weberian metaphor of the struggle of the gods, although shifting the analysis towards the properly sociological ground of a plurality of discourses and systemic rationalities. This reconstruction of the theory of legal pluralism in the wider context of a fragmentation of autonomous spheres of rationality enables Teubner to avoid some of the obstacles which often affect the pluralist view of law, such as a monolithical representation of State law and the absence of a clear notion of what is distinctively legal.

This paper builds on the notion that cultural revolution has always been implicated in processes of state formation and is manifest in moral regulation, which produces the normalizing, taken-for-granted reality of deep processes of social change. Two bodies of work are examined—namely, Norbert Elias' historical sociology of the civilizing process, and Peter Burke and the English social historians' concept of the “reform of popular culture”—for the insights they can provide into the part played by law in the formation of the modern state, the modern self, and the practice of everyday life.

This article considers the relationship between judicial review and democracy through a case analysis of legal rights by the Supreme Court of Canada. Perhaps more accurately, this article seeks to engage an influential group of scholars, the Canadian interpretivists, best illustrated by the scholarly contributions of F.L. Morton, Rainer Knopff and Christopher P. Manfredi. Unlike the Canadian interpretivists, who conclude that judicial activism by the Supreme Court of Canada has undermined liberal constitutionalism, this article suggests that judicial activism has deepened constitutional supremacy. This argument is developed in two parts. In the first section, the theoretical limitations of original understanding are explored, largely as a way to illustrate the conceptual difficulties facing the Canadian interpretivists and their attempt to demonstrate the unconstrained nature of judicial power in Canada. In this section, we contend that the construction of original understanding is a highly subjective enterprise that creates the myth of judicial supremacy. In the second section, the empirical limitations of the claim of judicial supremacy are discussed by identifying the paradox of judicial activism — how judicial activism and its impact varies depending on the state actor at the centre of a Charter challenge. Through a case analysis of legal rights cases decided by the Supreme Court of Canada, this article confronts the myth of judicial supremacy by demonstrating that judicial activism against the police does not advance judicial supremacy but strengthens constitutional supremacy. By redefining the relationship between citizens and the state through an activist legal rights jurisprudence, the Supreme Court of Canada has effectively checked arbitrary uses of state power by the agents of law enforcement. This activism serves to advance constitutional supremacy, despite claims to the contrary by the Canadian interpretivists.

In perhaps no other area of scholarship is access to information (ATI) legislation as contentious and the stakes so high as in policing and security research. Although ATI has become an important mechanism by which researchers have been able to analyse security and police practices, there remain significant legislative barriers preventing access. A decade after 9/11, the need for increased scrutiny of government agencies tasked with security and policing remains high, as is evident from the proliferation of public and private policing, the advance of a general societal risk aversion, and the now ubiquitous nature of state security and surveillance. In this article we offer first-hand accounts that highlight the institutional imbalances between police organizations and researchers, and consider the potential long-term effects of ATI in this area of scholarship. ATI legislation in Canada is increasingly becoming both a tool for researchers to penetrate policing organizations and also a weapon with which security institutions can stymie critical inquiry.

The significant amount of Canadian ATI research that has stemmed from national security scholars shows the difficulties faced in this field when attempting to exercise the “right to know.” The strident lack of transparency within security and policing institutions tips the balance of access versus secrecy towards the latter, under the ever-present assumption that secrecy equals security. However, this area of research plays an important role in political discourse by fostering public dialogue and raising awareness of questionable and illegal security practices. As Larsen points out, we have seen ATI used recently to shed light on politicized security issues such as the Arar Inquiry, the campaign to repatriate Abousfian Abdelrazik, and, most recently, the Afghan detainee transfer scandal.

The Truth and Reconciliation Commission (TRC) of Canada on Indian Residential Schools provides us with the opportunity to observe the process through which victims reconsider their place in the history of the state. The statements offered in this context put into relief the suffering and memories of assault and torture of children, to the detriment of a more complete and varied view of the origins, modes of operation, and consequences of these residential schools. By favoring the expression of a certain type of testimony, Canada’s TRC shapes many narratives of trauma, institutional crime, and national history. This essentialization of testimony leads us to question the ability of the TRC to effectively reveal the diversity and dynamics of the residential schools, the reasons for their establishment, the causes of the corruption of their goals, and the common features they might have with ongoing, enduring forms of abuse and institutional power.

This essay explores the possibilities within Canadian legal education for the development of critical skills, attitudes and practices. It examines the structure and organizational culture of law school, and analyses the assumptions underlying the dominant model of legal knowledge. The conclusion drawn is that at every level, legal education teaches political values, and rewards personal characteristics that are conducive to the preservation of the status quo and which serve to marginalize critical knowledge and practice. The final section considers and commends several modest efforts to make some room for the critical analysis which is so lacking in legal education.

Based on a nodal governance perspective, this article attempts to make the case for connecting disciplinary perspectives in the study of urban governance. We argue for more robust analytical enterprises that incorporate mixes of quantitative and qualitative techniques that capture both “bottom-up” and “top-down” empirical developments. Whilst stressing the need to measure the nature and strength of ties between governing nodes, we suggest there must be equal emphasis on depicting the various rationalities, and the forms of knowledge and capacities that inform them, at various nodal sites. We also highlight a number of cross-disciplinary contributions that could be made to this project by research fields such as psychology, economics, health and social work, geography and urban planning. The authors draw from the work they are undertaking respectively in Montreal, Canada and in Melbourne, Australia.

In the early 1990's Canada began a process designed to increase the amount of child support to be paid by non-custodial parents in an effort to reduce child poverty. In 1997, after several years of study and coordination among the federal, provincial and territorial governments, Parliament passed a set of guidelines that linked the level of child support to the income of the non-custodial parent. This paper examines the historical development of the guidelines, and the assumptions that underpin them. The original goals of the guidelines are compared with their apparent and likely results in an attempt to provide a map for future adjustments and policy revision.

It is the thesis of this paper that the legal principles within pre-contact Aboriginal legal orders affecting individual and collective rights can be articulated and extended to apply to current-day sexual orientation and transgender issues in Aboriginal communities. The conceptual framework for the paper is that (1) pre-contact Aboriginal societies generally accepted sexual orientation and transgenderism diversity, (2) a consequence of colonialism has been widespread intolerance of sexual diversity, (3) recent litigation and political action have raised the profile of sexual orientation and transgender issues within Aboriginal societies, and (4) Aboriginal people can draw on pre-contact legal orders and employ a critical pragmatic approach to build non-oppressive self-governing nations. The paper argues further that the conflict between collective and individual rights is essentially a false dichotomy. The challenge is to figure out how Aboriginal legal systems can coexist with the western legal system in a way that maintains the integrity of each culture and that protects the rights of Aboriginal gay men, lesbians, and the transgendered.

The literature is replete with numerous examples of attempts to either abolish or reform traditional practices that violate the rights of people in different societies around the world. Few success cases have, however, been recorded. The recent anti-trokosi campaign in Ghana against female ritual servitude is one of the few success cases. By August 2000, 59 % of all known trokosis had been liberated. Today, it is estimated that less than a couple of hundred of trokosis are still held in bondage. The campaign, which started as a Christian religious crusade against the Ewe traditional religious practice of trokosi, backfired initially as it met with hostility and little cooperation from the shrine owners and practitioners. However, by 1995, the strategy changed from a religious to an international human rights campaign paving the way for the first mass liberation of trokosis in 1996. The author argues that the peculiar type of human rights approach adopted, which was based on education, dialogue, cultural sensitivity, and mutual respect, accounts largely for the success of this campaign.

This article examines how the 2010-2011 Reference re s 293, which considered the constitutionality of the polygamy prohibition, contributed to nation building discourses in Canada. A critical discourse analysis demonstrates that traditional views of monogamous marriage remain an important tenet of nation building in Canada. Discourses in the reference portrayed monogamous marriage as a central national institution and as a means of safeguarding women’s equality rights. These discourses, in turn, had racialized consequences for defining Canadian national identity.

“Home” to more than 150,000 children from the 1870s until 1996, the residential school system was aimed at “killing the Indian in the child” and assimilating First Nations, Métis, and Inuit children into white settler society. It was, in short, a genocidal policy, operated jointly by the federal government of Canada and the Catholic, Anglican, United, and Presbyterian Churches. Children as young as four years old were torn from their families and placed in institutions that were chronically underfunded; mismanaged; inadequately staffed; and rife with disease, malnutrition, poor ventilation, poor heating, neglect, and death. Sexual, emotional, and physical abuse was pervasive, and it was consistent policy to deny children their languages, their cultures, their families, and even their given names. While some children may have had positive experiences, many former students have found themselves caught between two worlds: deprived of their languages and traditions, they were left on their own to handle the trauma of their school experience and to try to readapt to the traditional way of life that they had been conditioned to reject. Life after residential school has been marred for many by alcohol and substance abuse, cycles of violence, suicide, anger, hopelessness, isolation, shame, guilt, and an inability to parent.

First Nations leader Phil Fontaine catalysed the struggle for redress in 1990 when he stunned Canada by speaking about his residential-school experience. The second major catalyst was the Royal Commission on Aboriginal Peoples (RCAP) of 1991–1996, which broadly exposed the horrors of residential schools to Canadians and called for a public inquiry.

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.