This paper explores various dimensions of the professorial office as a “legal” space. The office of a professor is, in one dimension, just a generic geometric place without a purpose or occupant that embodies potential in purely formal terms. But it is also a site, in that its very location, size and organization reflect functionality—the values, process and decision-making institutions by which occupancy is determined. In addition, the office embraces a stage and role through which occupants interact with colleagues, students and strangers in ways that confirm or disconfirm relationships of power and subordination. At the same time, the professorial office has a performative dimension, through which the normativity of a community—of professors, staff and students—is imagined and acted upon. Still again, in yet another dimension, it is a ritual space where professors work, relax, reflect, and reflexively contemplate patterns and forms of thoughts. Such an office exists wherever its occupants choose to place it. Finally, the office is a non-place of personal discovery—an intimation of space that has no location apart from the relationships that it creates and by which it is created.

In their introduction to Law in the Domains of Culture, Austin Sarat and Thomas Kearns write: “[l]aw and legal studies are relative latecomers to cultural studies. To examine [law in the domains of culture] has been, until recently, a kind of scholarly transgression.” The same could be said in reverse: cultural studies (including anthropology) are a relative latecomer to law and legal studies, but in the last few decades there has been a striking irruption of cultural discourse in the domain of law.

It is as if the acquisition of some degree of “cultural competence” has become a duty in legal circles. Not only are there seminars and courses in “cultural sensitivity” for judges, lawyers, and law enforcement officers, but “the culture concept” now informs many judicial decisions regarding Aboriginal rights, and “the cultural defense” (while hotly contested by some, and still lacking official approbation) has become a feature of numerous criminal trials involving immigrants. Interestingly, the Canadian Charter of Rights and Freedoms refers to “the multicultural heritage of Canadians”, and makes the preservation and enhancement of this heritage a condition of its own interpretation.

This study investigates the role of an emerging legal doctrine, the precautionary principle, in the development of the plan to manage West Nile Virus in the City of Toronto during the 2003 season. Specifically, it asks whether the precautionary principle, widely expected to transform environmental and public health decision-making, operated as a map or guide to officials trying to navigate through the uncertainty associated with both the virus and the “cure.” Although the study focuses on a very particular local context, it also addresses the broader challenges that are gathering for governments hoping to lean on the precautionary principle for policy guidance in the face of controversy. In the case of West Nile Virus, public health officials seemed to confront an intractable problem: taking precaution with respect to the virus, an uncertain public health hazard, meant facing the uncertain environmental and health risks associated with chemical pesticides. The study draws on qualitative empirical data gathered from participant observation sessions in the Toronto city council chamber and comprehensive semi-structured interviews with almost a dozen key policy actors. The purpose of this detailed empirical analysis is to evaluate the potential of the precautionary principle as a policy instrument in light of a common claim of the principle's critics. Can it point the way out of controversy? Or does the precautionary principle, as is argued by legal academics such as Cass Sunstein, “point in no direction at all”?

In this paper, we investigate the institutional interdependence between courts and police in the governance of picketing. The analysis contributes insight into how economic and security rights are balanced against political and civil rights in the oblique affirmation of a grounding of authority which is arguably more potent because of the indirectness of its everyday construction. We proceed by deriving the concept “judgement by deferral” from current literature on governance. We apply this to an investigation of how courts evaluate injunction claims in cases involving picketing and how police responsibilities are understood in these cases. We then examine police perception of their role in the governance of picketing and demonstrate how both the courts and police engage in deferral practices to avoid hard decisions. Finally, we show how these practices comprise a systemic approach to the governance of picketing, which can nonetheless break down in its application. Our sources for this assessment consist of court cases and our own interview samples drawn from police, union and management officials.

Dans leur introduction au livre Law in the Domains of Culture, Austin Sarat et Thomas Kearns écrivent : «Law and legal studies are relative latecomers to cultural studies. To examine [law in the domains of culture] has been, until recently, a kind of scholarly transgression». L'inverse est vrai aussi : les cultural studies (incluant l'anthropologie) sont arrivées tardivement au droit et aux réflexions sur le droit, alors qu'on assistait, ces dernières décennies, à une irruption remarquable de discours culturels dans le domaine du droit.

Il semble bien que l'acquisition d'une certaine «compétence culturelle» soit devenue obligatoire dans les cercles juridiques. Il n'y a pas que la floraison de séminaires et cours sur la «sensibilité culturelle» pour juges, avocats et policiers, mais le «concept de culture» traverse maintenant bien des décisions judiciaires en matière de droits autochtones, et la «défense culturelle» (bien que fortement contestée par certains et toujours sans approbation officielle) est désormais une dimension de nombreux procès criminels impliquant des immigrants. Aussi, la Charte canadienne des droits et libertés réfère à «l'héritage multicultural des Canadiens» (art. 27) dont la préservation et la promotion est une condition de sa propre interprétation.

Workers from the Commonwealth Caribbean employed seasonally on Canadian farms through the Canadian Seasonal Agricultural Workers Program are thought to be ignorant of prevailing labour standards. This marks not only an empirical claim about legal ignorance and knowledge, but also a theoretical claim about the role law assumes in capitalist relations, particularly in the ways law shapes consciousness and behaviour. The seasonal agricultural worker context presents an intriguing opportunity for the application of legal consciousness studies. Drawing specifically on the emerging field of new legal consciousness studies, with its emphasis on the legal consciousness of non-legal professionals, the paper contests both the empirical and theoretical aspects of the legal ignorance claim. New legal consciousness studies undergo an important revision to account for law's role in forming the background rules for liberal capitalism. In this respect, the paper points the direction for future study of the relationship between seasonal agricultural worker resistance and law.

Invoking a cultural defense has become a popular but controversial legal strategy. After explaining that the scope of the cultural defense is broader than is often understood and that it is used to mitigate punishment, create exemptions from policies, and increase the size of damage awards, I identify the normative principles that justify such a defense. Although it may be defended as a matter of principle, if this defense has any chance of being formally adopted, policies must be established to prevent its misuse. I propose a cultural defense test and show how it could be applied appropriately in a few cases. Following the analysis of its proper use, I demonstrate the potential for abuse by showing how in particular cases cultural arguments failed to meet the requirements of the cultural defense test I propose. Finally I recommend ways to assist courts in finding cultural experts who can authenticate the cultural claims.

The courts' continuing treatment of aboriginal oral histories as cultural artefacts is appallingly ethnocentric despite recommendations to consider the perspectives of aboriginal peoples and adapt the law of evidence. In this paper, I describe how Chief Justice McEachern of the British Columbia Supreme Court responded when a Gitksan witness, Gwaans, presented her adaawk as evidence of Gitksan land ownership and social organization. The Court was not able to hear or accept the adaawk as presented - a legal and political institution rather than a simple cultural artefact or chronological history record. The forms of expression, symbolism, and inter-connections between the worlds of spirits, humans, and animals proved to be beyond the grasp of the trial judge. Will the adaawk be treated any differently in future litigation? This paper addresses a number of concerns such as having the judiciary (1) apply a reductionist approach to the adaawk, and (2) evaluate the adaawk according to the rules of court instead of those inherent in the adaawk.

A determining factor in the evolution of their power relationship with the State was the fact that Native groups became conscious of their identity and collective power and that they defined their collective identity using the concept of “nation”. The federal positions have also changed on the question of Aboriginal collective rights and the State has modified certain principles in its policies. The Native groups have redefined their collective rights according to their needs and political objectives. With that concept, they have developed a form of counter-hegemony, releasing them from the domination of the State and enabling them to attain the political autonomy they are seeking.

Central to any consideration of “culture in the domain of the law” is whether and to what extent culture is justiciable, litigable, and subject to being adduced as evidence before courts and tribunals. Experts, usually from social science and humanities disciplines, will often be called upon to present this kind of evidence. While the Supreme Court of Canada has developed screening criteria for expert evidence, these criteria can be more difficult to apply when the evidence sought to be adduced is “cultural,” as opposed to classically scientific. Concern for the reliability of the expert evidence is multiplied when a jury is acting as trier of fact. This comment reviews a recent decision of the Nova Scotia Supreme Court in a racially-charged defamation case, using it as a platform for discussing the unique issues that are raised when cultural evidence is sought to be adduced in civil matters.

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.

This is an inquiry into the ways in which reasoning attaches to cultural context. It considers whether to seek grounds for decision-making in some common ground or in a recognition of diversity. The essay considers feminist criticisms of Habermas's discourse ethics and Benhabib's efforts to revise such an approach in response to cultural diversity. While the conditions for communication across cultures may be readily met with good will and good procedures, the conditions for reaching binding or consensual decisions are more challenging. The essay rejects the possibility of universal standards for reasoned decisions on three grounds. Reasons conforming to the standards of a multicultural public cannot rest on a single yardstick. Reasoning cannot be detached, in the Cartesian manner, from the corporeal being who is doing the reasoning. Reasoning is not a private and privileged mental process conforming to a unique set of rules. Drawing particularly on traditions of rhetoric from Aristotle to Perelman, the essay concludes: that reasons must be addressed to diverse audiences; that the affective and bodily specificity of deliberators is of central relevance (it matters who judges are); and that we must all continue our “moral education” in dialogue with diverse groups and ways of thinking.

Should courts seek to apply the concept of equality—as developed in public law litigation—in controversies between private parties? In this review article I argue that the distinction between the concept of “private” and “public” in current society is essentially based on the way equality is treated in each of these fields of social activity. This is because things in our society that are regarded as “public” are those that belong, equally, to everyone, while the things that are “private”—do not. Accordingly, the public field is dominated by the norm of political equality, while the private law field is dominated by the absence of a strict requirement for equal distribution of economic goods. So far, the phenomenon of courts applying the norm of equality in the private law field referred, largely, to cases in which courts enforced some fundamental requirements of political equality, such as the norm against racial discrimination, in private law litigation. Thus, this phenomenon does not raise serious questions of institutional legitimacy in current liberal democracy.

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.

The issue of customary law punishment, especially “payback”, has stretched the limits of the criminal law in a range of sentencing judgements in Australia's Northern Territory. A number of judgments relating to customary law punishment are discussed in this essay. Successive Australian judicial decisions have stated that Aboriginal criminal law did not endure beyond British settlement. However, the jurisprudence of the Northern Territory does not quite reflect this position. The response of the judiciary in the Northern Territory to customary punishments has been to develop a kind of soft legal pluralism. Judges both take into account the proposed punishment, and yet do not formally condone it. The judiciary has attempted to maintain control over customary punishment while being beholden to Aboriginal communities for evidence of appropriate customary responses, and for the carrying out of the promised punishments. This leads to a complex situation where Aboriginal people are both supervised and supervisor, and the state is both in and out of control.