The author examines the current Canadian approach to the recognition of the rights of Aboriginal peoples. The discussion focuses especially on the conceptual and legal problems at the centre of the Supreme Court's cultural discourse. The Court's approach to culture, “cultural distinctiveness” and “cultural rights” does not concord with current anthropological or historical conceptions of culture. With this approach Aboriginal cultural rights tend to appear “frozen in time”. The Court's cultural ideas are based in part on expert testimony (from the perspective of Aboriginal peoples, amongst others), on human rights and on public opinion, but they also have their own inherent logic. They are essentially oriented toward political questions surrounding the sovereignty of the Crown and the claims of indigenous peoples to self-determination. The cultural discourse of the Court is inseparable from the tension between the liberal politics of equality and the specific rights and claims of distinct peoples.

The fact that we are celebrating the 20th anniversary of the Report of the SSHRC Consultative Group on Research and Education in Law and that the event is cast as a celebration of the Arthurs Report signals two key features of legal research and legal education in Canada today.

To begin, it tells us that, at least in certain scholarly circles, the Report has had an impact. That impact can be seen both in the mirror of the past, and in the lens of the present. Looking backwards, the early success of this Association and the founding of its review - the Canadian Journal of Law and Society – attest to the immediate galvanic effect of the Report; its continuing influence is manifest, notably, in the decision of the SSHRC last year to create a separate adjudication panel for law and society research. Between these salient bookends, one observes that the Report has been called in aid of numerous projects, programmes and initiatives. Let me mention only two (with which I had some prior association) that took on a relatively permanent institutional form: the Law and Society (later Law and the Determinants of Social Order) Programme of the Canadian Institute for Advanced Research that flourished between 1986 and 1996; and the re-establishment in 1997 of a multi-disciplinary federal law reform agency – the Law Commission of Canada – that was charged with pursuing a law and society research mandate.

The interrelationship between Halakhah (Jewish law) and Aggadah (Jewish Legend) evokes potent insights, relevant to most disciplines that investigate law as a cultural practice, especially in the present-day Law and Literature field. This contention will be elaborated by proposing the two phased paradigm of literature alongside law. According to this paradigm, after considering the limits and sometimes failures of law, the next step is the attempt to deal with those effectively and to keep striving towards truth and justice within difficult realities. The Halakhah and Aggadah combination reflects the literature alongside law paradigm by creating a dynamic model of interpretation that is derived from a canon that is “both sealed and open”, and from the extensive use of narrative. Thus the Halakhah and Aggadah juxtaposition creates an authentic balance that while being aware to the weakness of law, continuously re-establishes it as a vital effort, characterized by failures and disappointments, but also by vision and achievements.

Harry Arthurs' Law & Learning report, conceived by the Social Sciences and Humanities Research Council of Canada and carried to fruition in 1983 by a ten-person Consultative Group and a twenty-three person Advisory Panel, was a formative document in the history of Canadian legal education. My recollection of the release of the report is probably intensified because of the circumstances in which I experienced it the following year - a seminar room filled with cranky faculty members at the Faculty of Law at the University of Western Ontario, as stony terrain as any venue one might have imagined for the reception of such a report. I was then a relatively junior untenured professor, hoping to build a scholarly record in the field of feminist legal history, who had unwittingly found myself in a law school in which most faculty were devoted to building its reputation as a professionally conservative, black letter law institution. Into such a milieu strode my former professor and mentor, Harry Arthurs, whose habit of describing Osgoode Hall Law School as the “best law school in the Commonwealth” had not particularly endeared him to the Western professoriate previously. I felt like a deer in the headlights, and my sense was that Harry Arthurs himself was very ill at ease in a room that exuded defensiveness and hostility, as well as both latent and overt anger.

This paper uses the example of performance-related or bonus pay in large firms to examine two competing orders of constraints on employers: legal restrictions and recommendations set out in management literature. Case law treats bonuses as compensation within a contract of exchange, viewing contract in a narrow, traditional way. In contrast, management literature views bonuses as communication with employees, and its prescriptions relating to pay system design, implementation, and operation reveal a notion of managerial fairness. The paper then inquires whether managerial fairness is derivative from the public law duty of procedural fairness. Differences between managerial and public law fairness (the former imposes more substantive constraints) suggest that, contrary to a mimesis hypothesis, firms, when adopting fair practices,, are not replicating norms developed in the governmental context. Managerial fairness appears to be self-generating within the semi-autonomous social field of firms. Drawing on Teubner's work on autopoiesis, the paper then considers how the legal system can facilitate this self-regulation, while still retaining some ability to intervene.

Invitée à «commenter les commentaires» de Constance Backhouse et de Roderick A. Macdonald sur le Rapport Arthurs, j'avais bien sûr prévu de leur part une évaluation critique de son influence sur l'enseignement et la recherche en droit, mais je ne m'attendais pas vraiment à des commentaires convergents aussi nettement négatifs … J'essayerai de voir si le tableau est aussi noir partout au Canada, pour tenter ensuite à mon tour une analyse des causes et des remèdes de ce mal-être que vivent les descendants d'Harry Arthurs.

Des diagnostiques négatifs convergents: Sur l'enseignement, surtout au niveau du baccalauréat, Constance Backhouse estime que rien n'a vraiment changé dans les curricula ou, si peu, dans certaines Facultés où l'offre de cours s'est diversifiée pour accueillir les perspectives sociales recommandées par le Rapport, mais où les étudiants boudent ces cours en faveur de ceux qui se rapprochent davantage de la formation professionnelle. Roderick A. Macdonald va dans le même sens en insistant sur le maintien du même découpage traditionnel des sous-disciplines juridiques inspirées de la pratique du droit, des mêmes formules pédagogiques, même au niveau des études supérieures, où il estime que peu de Facultés offrent en fait des cours spécifiques à l'enseignement supérieur, notamment au niveau doctoral. Il ajoute que le peu de théorie qui s'y enseigne est souvent superficiel, et que cette carence se reflète dans l'absence presque totale de stagiaires post-doctoraux dans les Facultés de droit. Sur le plan de l'accessibilité aux études, la communauté juridique a également régressé depuis le Rapport, compte tenu de l'augmentation phénoménale des frais de scolarité dans certaines Facultés, notamment à l'Université de Toronto.

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.

U.S. drug policy has, and continues to create tension between the United States and other countries. Using the August 2001 report of the Jamaican Commission on ganja, this paper uses the certification process to highlight some of the tensions inherent in the U.S. federal government's anti-marijuana legalization posture. This paper discusses the likelihood of the U.S. federal government changing the legal landscape for marijuana. It concludes by recommending, as potential solutions to address the tension between the US and its regional neighbours, regionalization of drug control and replacing the drug certification process with the Multilateral Evaluation Mechanism (MEM). The question becomes, is there a policy entrepreneur willing to agitate for a change in the policy environment?

In my contribution to this discussion or the Arthurs Report twenty years later, I want to talk briefly about the teaching aspect of legal education. I want to be emphatic in my focus on teaching because I fear that teaching is increasingly diminishing as an object of our attention and as a subject of our scholarly work. I fear that, for many of us, teaching is becoming a less and less significant part of our discussions, our hirings, our preoccupations, our energy … To me, this is both short-sighted and sad, particularly for those of us who are committed to a law and society approach to legal education. If we are committed to social change, then education, in the form of teaching and learning, is critically important – that is, what we teach and how we teach, and what we model as teachers and thinkers are important instigators and promoters of change. I make this assertion of a lack of serious interest in law teaching despite the fact that there have been a number of Canadian forums on legal education recently. However, admissions and administrative matters largely overshadowed teaching as issues of primary concern and discussion in the two forums that I attended. I do not think these forums generated the kind of on-the-ground, in-our-work-places re-energization and rethinking of legal education and specifically about teaching that was perhaps hoped for.

One of the recommendations made in Law and Learning is that “[t]he teaching of law in the liberal arts and other faculties should be encouraged.” Earlier in its report, the authors acknowledged the existence of legal studies programs outside law faculties in Canada and emphasized that in these programs legal doctrine exerts much less influence on the direction of study than in law schools. Law teaching in these programs, the Consultative Group explains, “has many attractions. It relieves the subject of its professional training connotations, facilitates integration of legal study and research with parallel activities in other disciplines, and recognizes that law ought to be understood by and subject to the critical scrutiny of as many citizens as possible.”

Although the praise in Law and Learning for legal studies programs outside law faculties and especially in faculties of arts and social sciences in Canadian universities is considerable, it is significant I believe that the report does not explain why the teaching of legal doctrine – legal rules – is not central to these legal studies programs, and in particular law and society undergraduate programs. Indeed, the demand from incoming undergraduate students and ordinary citizens is overwhelmingly for these programs to offer courses on legal doctrine. And some programs in Canadian universities comply. Why not teach legal doctrine in these programs? Why should the study of law in these programs be so different from that found in Canadian law schools?

Two years ago, while preparing a one week seminar for law professors at the Université nationale du Rwanda in Butare, I had the occasion to revisit the Arthurs Report on Law and Learning. I remember that my reaction was: how did things change so significantly since the Report was published?

That is why I was very interested to receive my new issue of the Canadian Journal of Law and Society that announced a complete dossier on the Report. After I read the first two articles by esteemed colleagues Roderick A. Macdonald and Constance Backhouse, I was shocked. How could there be such a gap between my perception and theirs? I was nevertheless relieved to see that Andrée Lajoie, in her “comments on the comments”, was as astonished as I was. I then decided to write my own comments in order to reflect a bit more the situation of the Civil Law faculties in Quebec and in particular the vision of the Université du Québec à Montréal (UQAM). I will limit my comments to three topics: the study of law at the undergraduate and graduate levels and the state of legal scholarship.

Last year, the Faculty of Law at the University of Toronto approved a plan that will see tuition fees increase from $12 000 to $22 000 dollars over the next five years. Other Canadian law faculties are beginning to follow, or are considering following, the University of Toronto's lead. In light of this trend toward higher tuition fees, the time is ripe to step back and ask: what will this mean for legal education in Canada? In particular, on the twentieth anniversary of the release of Law and Learning (the “Arthurs Report”), it would seem important to reflect on the impact that higher tuition fees might have on law and learning in Canada. What will dramatic increases in tuition mean for the values and laudable objectives set out in the Arthurs Report? These are some of the issues that I seek to address, partly through a personal reflection on my own experience as a law student and as someone who is near the completion of graduate studies in law.

In September, 1999, the Supreme Court of Canada (SCC) released its decision in R v. Marshall. Donald Marshall Jr., no stranger to Canadian law, had been convicted of catching eels out of season, without a licence, and selling them, contrary to the federal Fisheries Act. He admitted the offences, but appealed his conviction to the Nova Scotia Court of Appeal and then to the SCC on the grounds that the 1760–61 treaties between the Mi'kmaq and the British recognized his right, as a Mi'kmaq, to catch and sell fish, and that this right was protected under the guarantee of Aboriginal and treaty rights in the Canadian constitution. Justice Binnie, writing for the majority of the SCC, overturned the convictions. The Mi'kmaq, he held, did have treaty rights based on the 1760–61 treaties to catch and sell fish, including eels.

The Mi'kmaq were delighted. After many years and many appearances before Canadian judges (R. v. Syliboy, R. v. Issac, and R. v. Simon), it appeared that the courts were finally prepared to recognize what the Mi'kmaq had long believed: that the eighteenth century treaties were the foundation of their relationship with Canada, that the treaties were still in force, and that they guaranteed commercial hunting and fishing rights in their traditional territories.

This analysis of Senegal environmental law is based on the example of a local context of rural communities located in the eastern Senegal area where the Bassari population is settled. The environmental legislation in Senegal does not seem to fit the local and rural realities. Our approach proposes to build a patrimonial legal system involving responsibility of the different actors in decision making. Law should be elaborated consensually by the different stakeholders, so that it will be easier to implement. We have conceived a «local environmental agreement» in order to link the local (legitimate) and national (legal) requirements. The aim of this article is to develop a conceptual and practical basis for legal and institutional patrimonial management of the natural resources.

Using Professor George Fisher's wonderful new book, Plea Bargaining's Triumph as a springboard and roadmap for a journey into plea bargaining's past and present status, this brief essay will attempt to build a theory accounting for the centrality of plea bargaining in today's—and tomorrow's—criminal justice system. By looking back, Fisher illuminates the present, and suggests a future for plea bargaining in the disposition of the cases. His analysis ends with “plea bargaining's triumph;” with its emergence as the single most important (and powerful) factor in the disposition of criminal cases. I will applaud, but qualify his arguments and speculate about “plea bargaining's future.” His looking back, led him to conclude that plea bargaining coopted or caused most criminal justice innovations of the past two decades, and that almost anthropomorphically, it emerged victorious. His understanding of the “causes” of plea bargaining's centrality deserves applause along with qualification; his painting of a picture of plea bargaining “victory” is correct, and is fruitfully linked to a future informed by his understanding of a past.

First, some general ground rules for what I will and will not do in this essay. I will not systematically or exhaustively summarize Fisher's arguments, nor will I referee the disagreements he surfaced with the respect to the work of many major studies of plea bargaining and its history. Suffice it to say that this is a very careful historical study of the origins of plea bargaining, and that it primarily relies on a very detailed and very, very careful analysis of the court records of Middlesex County, Mass., mostly for cases disposed of in the 19th century. Based on these data, and secondary analyses of data from studies of plea bargaining in other jurisdictions, Fisher builds a theory of the growth of plea bargaining that is sometimes original, always engaging, and inevitably provocative. Though I take issue with some of his arguments, he must be lauded for the care and clarity of his presentation, and for the enormous literature he uses to develop and support his case.

Industrial activity, intensive agricultural settlement, water diversion and hydroelectric development, among other activities, have the potential to directly or indirectly impact the physical and cultural sustainability of modern Aboriginal communities. However, the water rights of Aboriginal people in Canada remain uncertain. This paper discusses how Bands in the treaty 8 area of northern Alberta possess Aboriginal, treaty and common law water rights and, in some cases, may have received title to the beds of navigable, on-reserve waters by implication. It then discusses some indirect impacts of hydroelectric development on the traditional economy and the manner in which Bands may prevent or participate in such development.

In 1992, Ontario completely changed its adult guardianship laws. Ontario's reform was the outcome of a long and thorough legislative effort aimed at shifting the political balance from a paternalistic to an autonomy-respecting adult guardianship system. Since the proclamation of Ontario's new adult guardianship laws, no empirical research (or any other scientific research for that matter) was conducted with regard to the actual success, failure, implementation, or other dimensions of the new regime. This article presents the findings of an exploratory study of the elder guardianship experience, as viewed from the narrow yet important perspective of Ontario's Consent and Capacity Board. The findings provide a glimpse of Ontario's elder guardianship reality and establish the main questions and important dimensions that should be further examined in future studies in this field.