Recent debates over same-sex marriage prompt reflection more generally on the competing norms regulating marriages. Two supremacy claims emerged in the debates, one that religious traditions provide the supreme law of marriage, another that civil marriage is entirely secular and its supreme law is the Canadian Charter of Rights and Freedoms. This paper identifies similarities in these claims. Both wrongly ascribe an internal uniformity to cultural communities. Referring to historical amendments to marriage law, the paper argues that both claims are unfaithful to the Canadian tradition of marriage law. Amendments to the prohibited degrees of relationship and the introduction of federal divorce legislation show the federal Parliament to have developed a civil or profane marriage in conscious opposition to religious forms. Since the 1880s, marriage law has been periodically altered on the basis that it is wrong in a plural, secular society to impose religious views on nonbelievers. Parliament has not simply followed top-down norms, but also regarded social practice as a source of marriage norms. Past instances of law reform indicate a rich political tradition of argument and contestation, one in which the churches have not maintained consistently that the civil law of marriage should mirror religious rules. Civil marriage and religious marriage are not, as claimed by the standard bearers of the Charter, unrelated. They stand instead in a constantly adjusting relationship of tension and difference.

This paper considers the current state of academic legal research in a neo-liberal policy environment. The purpose of this study was to obtain empirical data profiling the research activities of full-time, tenure-stream, law professors in Ontario's English-speaking common law schools to ascertain trends over the past 20 years. The implications of the findings were critically analyzed in terms of a socio-critical framework that considers the relationship between knowledge and professionalism within the context of the political economy of higher education. The findings suggest that while changes in higher education associated with neo-liberal policies are challenging law professors' research context, these same changes have contributed to their strengthened position in the university. The findings suggest this is largely because of factors not associated with research, such as the strong teaching mission and the deregulated tuition fees associated with the professional program, as well as the proximity to a wealthy and entrepreneurial profession that has strong connections to the market and offers potential endowments and donations. Some participants believed this allowed law professors to preserve their professional autonomy in relation to their work and scholarship while others maintained that the law itself had been penetrated, and possibly compromised by a neo-liberal agenda.

It is commonly thought that the watershed Supreme Court of Canada cases on Aboriginal rights represent a gradual trend wherein Aboriginal peoples have gained increasing protection under Canadian common law. However, this paper argues the contrary. Despite judicial decisions dealing with Aboriginal rights under section 35(1), the rights of Aboriginal peoples in Canada have not gained greater protection and they certainly have not expanded to encompass the right of self-determination. Instead, it is argued that judges have introduced and applied various legal tests which have ultimately resulted in further impediments to the expansion of broad Aboriginal rights under section 35(1). It is interesting to discover that the level of political and governmental recognition of Aboriginal peoples and their rights, including the right of self-determination, has been greater than at the Supreme Court of Canada. This is despite the destructive treatment of Aboriginal peoples by the Canadian state. On the whole, the Government of Canada has been willing to recognise the inherent right of self-determination as applied to Aboriginal peoples. This is due to the changing legal status of who constitutes “peoples” under international law and the role of the Canadian government as a signatory to various relevant international covenants and declarations, alongside more recent government policy statements and developments in comprehensive land claims and self-government negotiations. Ultimately, it is argued that the Canadian government has tended toward higher levels of support for more extensive rights for Aboriginal peoples than has the judiciary, and most notably, the Supreme Court of Canada.

This article puts forward an analytical canvas for studying the effects of a divide between normality and exception in the institutionalization of power-attributing rules. The question is raised through the study of the coordination of institutional agents around issues pertaining to the specification of exceptions. The initial canvas is enriched by the re-examination of examples taken in the field of the legitimate intervention of the State against the backdrop of uncertainties about the meaning of European rules which are central to the policy of competition.

Chaim Perelman's critique of Kelsen's pure theory of law concerns mainly two elements: his theory of interpretation and his conception of court decision. Although a court decision is never formally deduced from the law, one cannot say neither that it is “arbitrary”: it leans on reasons, which cannot be reduced to the judge's individual motives and whose value can thus be assessed by the “science of law.” As for interpretation, it is not limited to establishing the meaning of the law's terms, but contributes also to specifying the meaning of the law itself in relation to cultural values—even if these values are not explicitly mentioned by the law. In confining the judge's role to the strict application of the law, the Kelsenian conception of judicial power defies the Kelsenian epistemological imperative, which is to describe “how the law is, not how it ought to be.”

Whereas traditional conceptions tend to conflate territory and its physical spatial extension, this paper advances an argument to oppose such reductionism. It explores the features of a non-intuitive, radical conception of territory and proposes to apply it to law. Relationship, rather than space, is suggested to be at the conceptual core of territory, so that spatial and non-spatial territories can be seen as superimposed one onto the other and endowed with multiple connections, according to different scales and degrees of visibility. Territory is regarded as an activity of boundary-drawing and as a process which creates pre-assigned relational positions, both of which are key concerns for law. From this perspective, law is an inherently territorial endeavour. The focus of enquiry is consequently shifted to the actors who, by building and shaping their social relationships, draw different types of boundaries, on the technologies they apply, and the aims they attempt to achieve through boundary-drawing.

This article examines the values ascribed to the lives of non-citizens by the Immigration and Refugee Protection Act's security certificate process and its implications for state power and political freedom. Under the imperative of national security and the “war on terror,” the security certificate functions as a moment of legal exception for the assertion of sovereign power and legitimation. This compromises the rule of law and denies basic legal protection to non-citizen detainees. The first section of the article addresses the mechanisms and procedures of the security certificate. Special attention is paid to the use of detention and evidentiary standards in order to illustrate the manner in which the security certificate derogates the rule of law. The second section considers how eroding the rule of law opens a space of exception for the exercise of sovereign, unmitigated state power that is grounded in the discriminatory criteria of citizenship status so as to implicate foreignness in the production of danger. The final section addresses how the security certificate configures freedom as commensurate with the national security objectives of the “war on terror”, exposing the limitations of liberal freedom in relation to modern state power.

This paper outlines the history of employment equity and human rights legislation with regard to disabled persons in both the U.S. and Canada. It compares the two countries' statutory and judicial approaches to the problem of achieving equality for disabled citizens in the workplace. In drawing the comparison, it draws attention to both the positive and negative aspects of the two jurisdictions. In conclusion, it suggests that Canada draw on the “universal” and “holistic” approaches embodied in the environmental portions of the American ADA and in Canadian judicial decisions to create a novel legislative solution. It suggests that Canadian statutes aimed encouraging equality for disabled persons should echo existing occupational health and safety laws, by requiring all employers to abide by a proscribed standard for universal accessibility in all workplaces, regardless of the presence or number of disabled employees.

Ghana joined a group of transitional democracies in the world by establishing a National Reconciliation Commission (NRC), which started work in September 2002. The NRC was mandated to investigate past atrocities and human rights violations, recommend appropriate compensation for victims, and reconcile the nation. But expectations among Ghanaians of the ability of the NRC to heal the wounds of the past, end the cycle of vengeance and vendettas, and reconcile the nation have been mixed even after the NRC completed its work and submitted its report in October 2004. This paper makes a case for Ghana's NRC. It argues that a National Reconciliation Commission is a better way of dealing with the egregious human rights violations in Ghana's past than the alternatives available.

This paper deals with the official apology offered by governments to peoples or groups, often a minority of their own nation, who were once victims of a crime against humanity. After staying six months in Alaska with the Unangan people who, in 1988 for the first time in the country's history, received from the American Congress official apologies and financial compensation for their evacuation and internment during WWII, I have returned with a significant amount of data. They tend to show that if such apologies, although considered unanimously as a positive gesture, are not accompanied by certain essential conditions, they are viewed mainly as a political strategy and comedy. Furthermore, if this evolution results directly from recently-acquired historical, legal and political consciousness of peoples, especially of Aboriginal peoples, it represents a new kind of test for individuals and groups in our democracies who are really concerned with common welfare.

In the debate over the legitimacy of judicial review, Jürgen Habermas put forward two justifications for the role of constitutional judges within deliberative democracy. Judicial review must examine the procedural conditions of the legislative process and participate within a learning process that would ensure the continuous redefinition of the Constitution. This procedural concept of constitutional justice remains subject to the scrutiny of the other procedural theories. Whereas the theory of contextual proceduralization questions the concept of the legal judgment and more specifically the habermassian conception of the application of a legal norm, the systemic theory offers the conceptual framework required to explain this learning process and the function of judicial review in the legal system. Therefore, Habermas' procedural theory is extended in line with alternative theories of the proceduralization of law.

Legal scholars tend to situate the development of rights in constitutional courts. However, recent studies in the law and society tradition find that individual choices or choices by private organizations also can transform the meaning of rights. Further extending this argument, this paper hypothesizes that the transformation of rights also occurs through incremental policy changes made by subnational officeholders and administrators, including changes that “layer” new meanings onto law and rights. To examine the hypothesis, this paper uses the example of property rights and land use regulation. It concludes that Canadian officeholders and administrators engage in an ongoing development of the meaning of rights within a rationality defined by entrenched constitutive values about territoriality.

The proliferation of relatively short sentences of imprisonment of 30 days or less in Canada is an under-researched topic. A close analysis of sentencing data suggests that administration of justice offences are the most common offence category addressed through custodial sentences of one to 15 days. The sentencing data suggest that the courts are responding to the seriousness of offences or a proportionality model. Beyond the quantitative analysis, however, very little is known about the purposes and meanings of these sentences to court players like judges and Crown prosecutors. The analysis focuses on accounts of judges and Crown prosecutors as meaning-makers in a ‘courtroom workgroup’ (Eisenstein and Jacob 1977), and attempts to understand their goals and values of imposing relatively short sentences of imprisonment for administration of justice offences within the contexts of existing literature, sentencing theories, and organizational grounds. I argue that existing theories of sentencing—particularly that Crown prosecutors and judges are responding to the severity of administration of justice offences and are meant to accomplish general deterrence or denunciation—may be insufficient explanations in understanding short periods of custody for these offences. The interviews and observations of plea negotiations reveal that future risk management and character-building are viewed as important goals and values by Crown prosecutors and judges. The study also demonstrates that the plea bargaining process should not be viewed separately from sentencing outcomes.

Protecting research confidentiality is an integral principle of all social sciences and humanities ethics codes. But what if a court were to want access to confidential research information, either in pursuit of civil litigation or a criminal case? In Canada, only Statistics Canada research information enjoys an evidentiary privilege—a court cannot compel its disclosure. All other researchers would have to turn to common law to defend confidential research. The onus would be on them to prove on a case-by-case basis that confidential research information should remain confidential, thereby creating the possibility that a court might order its disclosure. The first part of the article identifies five problems arising from this current state of the law. Statute-based protections of research confidentiality would go a long way toward resolving these problems. But what would these protections look like? Who would administer them? The second half of the article examines statute-based protections of evidentiary privilege, including the Canadian Statistics Act and Canada Evidence Act, and US “confidentiality certificates” (for certain kinds of health research) and “privacy certificates” (for certain kinds of criminological research) with an eye toward formulating criteria that a Canadian research shield law might emulate.