This paper contends that the chaos and uncertainty characteristic of the administration of the civil law in Lower Canada resulted fundamentally from the impact of the change in legal metropolis on the process of transfer and adaptation of a European legal system to a colonial setting, in a context of ethnic or national struggle for hegemony. After a brief look at the situation existing under the Quebec Act and the explanations previously offered, the paper examines the functioning of the two major mechanisms of legal adaptation or reform--legislation and jurisprudence--in order to analyse their failure to reduce judicial chaos between 1791 and 1840. Ethnic conflict combined with the change of metropolis acted to prevent any modernization of the law not inspired by English legal principles and thus effectively eliminated the possibility of legislative reform of the laws. In this context, a predominantly British judiciary became the prime avenue for anglicizing Canadian law and thereby increasing rather than decreasing the existing uncertainty and confusion in the administration of the civil law.

Between 1930 and 1945, Georges Gurvitch devoted several books to the exposition of his “theory of social law.” Since 1968, Ian R. Macneil has extensively developed his “relational theory of contract.” Their common ambition was to overcome the dominant legal doctrine by showing how and why it arbitrarily ignores some fundamental aspects of the social reality of law and contract. Despite their exceptional merits, both theories have failed to exert any significant influence among contemporary jurists. Two fundamental reasons account for that failure. First, Gurvitch and Macneil give an uncompromising priority to the objective of knowledge over the objective of action by trying to reflect systematically the complexity of the social reality of law and contract. On the contrary, the dominant legal theory submits itself to political and professional pragmatism and its needs of logical simplification. Secondly, Gurvitch and Macneil's failure has much to do with their commitment to the ideals of solidarity and autonomy while most of the contemporary jurists espouse an authoritarian conception of law and society.

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.

Michel Foucault has been one of the top French thinkers of the twentieth century, one of the masters of suspicion about our civilisation. He has invited those who work in the fields of law and the human sciences to examine the genealogy of their respective domains of activity. In particular, Foucault has questioned the ability of the dominant juridical model, that of sovereignty, to give an account of the field of power relations at the onset of modernity. He studied the remodeling of individuals and populations through a series of disciplinary and regulatory practices. The latter would have been unthinkable without the close collaboration of the nascent human sciences. According to Foucault, the practitioners of law and of the human sciences join their forces in the ontological productivity of bio-power. In order to counter such an alliance, one must first of all become conscious of its might.

The Law Society of Alberta was given an almost exclusive jurisdiction to discipline Alberta lawyers in the 1920s. “The Black Sheep” uses the records of governments, courts and law societies in the old North-West Territories and Alberta to trace the emergence of this aspect of professional self-governance from 1885 to 1928. For most of this period, governments and then courts had disciplined lawyers. However, there was an increasing number of public complaints and criticisms directed against lawyers in the mid-1910s and especially after the Great War. By the 1920s the Alberta Government, the senior judiciary and the Law Society of Alberta decided, each for different reasons, that the best way to handle the complaints was to let the profession discipline itself. Ironically, the number of complaints increased even as the Society exacted greater discipline on lawyers.

Recent historical scholarship has stressed the importance of dominant political and economic interest groups in shaping the organization and role of nineteenth-century police institutions. While acknowledging the necessity of developing macro-structural interpretations of police development, this paper argues that a comprehensive understanding of policing requires greater attention to organizational concerns with legitimation, self-maintenance and self-determination as intervening variables in the evolution of urban police forces. Using data on policing in nineteenth-century Toronto, emphasis is placed on delineating the process by which police administrators sought to achieve insulation from external sources of control and to act as independent agents of change and innovation in the structure and functions of policing.

The similarities between the Canadian temperance movement and the contemporary war on drugs are examined. The similarities in rhetorical, educational, social and political tactics suggest that contemporary anti-drug policy relies on techniques Canadians rejected sixty years ago when they rejected alcohol prohibition. A rethinking of contemporary drug policy is therefore in order.

The statutory entrenchment of the Canadian Charter of Rights and Freedoms marks a break with the common law practice of protecting civil liberties by means of socio-legal convention. This article argues that such a break with common law practice can be justified at a theoretical level through reference to Max Weber's liberal rationalist account of the effects of modernization on law and society and, at a practical level, points out parallels between Weber's position on modern law, the pre-entrenchment doctrine of the Supreme Court and Pierre Trudeau's advocacy of the Charter. However, the article argues that a Weberian account of modernity and law is based upon too narrow a conception of rationality to allow it to deal with the normative questions that are raised by the substantively democratic claims made by the Charter and with which the courts will have to deal in making judgements in Charter cases. The article concludes that in order for court interpretation to take the substantive sections of the Charter into account in a meaningful fashion, it will be forced to abandon what, until the entrenchment of the Charter, was a narrow, positivist interpretation of rights and democracy; and that this can be accomplished by means of a reconstruction of the democratic ethos that is nascent within the common law tradition but remains as yet undeveloped in a clear fashion.

Ideally, medical malpractice actions should deter medical negligence and compensate victims in a manner that is fair, speedy, cost-effective and accessible. Tort critics, however, argue that tort law in general and malpractice actions in particular do not match this ideal. But there is considerable debate about whether the identified faults are inherent or optional in tort adjudication. Those who believe adjudication itself is faulty propose alternative strategies including no-fault compensation schemes, public law prosecution and arbitration. In the paper's first section we consider whether the performance of the traditional adversarial system of dispute resolution in medical malpractice cases is inadequate. Arbitration's effectiveness as an alternative to litigation is then evaluated with reference to three arbitration models employed in the United States. We conclude that arbitration reforms offer distinct advantages but are no panacea for some basic justice problems that stem from political, legal and economic power imbalances between physicians and their clients.

From 1984 to 1986, the Computer Science and Law Research Group at The University of Quebec at Montreal conducted a socio-legal survey for the Government of Quebec on personal data banks in the private sector of Quebec's economy. The study flowed from a concern for the defence and promotion of individual rights and freedoms, which appeared to be threatened by the growth of relatively unregulated data banks. By furnishing an often confidential computerized double, sophisticated data bases can often give a better picture of individuals than they themselves could provide. Ultimately, decisions affecting individuals and social choices could be taken without any control over their conformity to rules of natural justice and democracy. With these concerns in mind, we studied both the current state of development of such data banks and the state of the law regulating them.

Le principe rigide de l'égalité peut être imposé par le hasard ou par une nécessité extérieure, mais les hommes capables de soupeser chacun, comme dans une balance, et d'attribuer, selon leur bon plaisir et leur appréciation, aux uns plus, aux autres moins, de tels hommes devraient soit descendre de surhommes, soit être soutenus par une terreur surnaturelle.

The medical profession is in a crisis due to the increasing awareness of pluralism and the rejection of “community standards of practice” as a principle ethically and legally sufficient to govern medical practice. Historically, professional peer-review and appeals to local medical community standards of practice have been the basis for managing legal and ethical disputes. It was rare for patients or courts to challenge the authority and autonomy of the profession. This was the legacy of an earlier, less pluralistic society. Monolithic societies have a common or authoritative set of moral values, usually founded on a religious structure and institution, so that the moral limits of any type of practice, including medical practice, are well understood. We no longer live in such a society.