Using two reports about the practice of racial profiling in Toronto, I argue that racial profiling must be understood as a category of governance. My argument for understanding racial profiling as a category of governance is to insist upon a move away from questions or investigations that ask whether racial profiling occurs as a police practice. Instead, by understanding racial profiling as a category of governance, I argue that scholars and practitioners can begin to expose how different racialized practices regulate the boundaries of citizenship and ultimately work to establish how citizen rights are organized, policed and implemented. I conclude by suggesting why it is useful to speak of a “category of governance” as a concept that has wider potential use in the study of racial profiling, particularly as it pertains to the variety of ways in which certain populations are made (or are not made) into subjects/citizens of modern nation states.

In this article, the authors carry out a documentary analysis of the stakes and debates surrounding the policies and practices of the recruitment of ethnicized and racialized groups within the Canadian police services. The analysis of the justifications set forth by the proponents of affirmative action in the police services as well as the identification of the questions which have prompted the debates, criticisms and hesitations regarding this policy bring the authors to conclude that the integration of minorized groups in the police services is less concerned with the redressing of inequities than with the development of a new process of racialization.

The Islamic legal enterprise forms an inherently plural system that can appear puzzling to commentators looking for faithfulness to principle or precedent. When one looks at it, instead, as an ongoing search for correspondence between divine guidance, rooted in the foundational sources of Islam, and the singularity of concrete circumstances, Islamic law is revealed as a practice of discernment against the grain of the particular. This article unfolds this approach to understanding Islamic law by entering the conversation where it is currently most heated, namely in connection with the development of Islamic financial products. A case study of takāful regulation in the United Arab Emirates (UAE) helps substantiate the import of our proposal for attuning to the voice of Islamic jurisprudence (fiqh), in the face of contemporary questions arising from the design of financial products in correspondence with the Sharī’ah.

The limits of the normative nature of law may be illustrated in the current English Canadian context by apparently contradictory phenomena: legal defeats of welfare mothers (e.g. Masse and Falkiner), and the legal victories of lesbian mothers (Re K). Drawing upon Fine, this paper employs the analytic frame of form and content to analyse contradictions within the legal form, notably in respect of the definition of spouse and the regulation of relations of property and poverty, and the struggles of lesbian parents who have applied to the courts to formalize their relationships to their children by way of adoption, and who, in so doing, have challenged the normative content of spousal relations. In analysing law as a gendering strategy, it is necessary to be mindful that law may not be the dominant site through and in which gender relations are constructed, regulated, reconstructed, or resisted. In this paper, the author examines and analyzes the contradictions in the legal form that have been mobilized, the ‘stirring up’ of the content that has been done, and the constraints and limits that shape the results.

The social exclusion of aboriginals is defined as a condition of non-citizenship that results from a rupture between a Nation and its “history”. This break-up process implies that certain individuals and groups have lost access to social, civil and political rights. Historically, the marginalization of aboriginals registered in the cursus of the incorporation to the Nation-State that was translated by an internal policy of reduction and segregation that contributed to the appropriation of lands that were materially and symbolically linked to them. This article intends to understand the role played by law, in such a rupture process, by examining more specifically the effects of the Indians Act. The author conceives that the imposition of law to the First Nations, has been the producer of exclusions by starting and then reinforcing the material and identity break-ups. In conclusion, the author proposes six theoretical principles permitting analysis of the complexity of relations between law and exclusion.

Recent research shows that monitoring and surveillance of workers in Canada is increasing. The Canadian Federal Government, at the same time, is calling for increased access to proprietary databases for lawful purposes. Employers therefore face a distinct possibility that their monitoring and surveillance data will be routinely accessed by various government and law enforcement agencies. Since in many provinces workers enjoy little legal protection of their right to a private life, and since new legal protective measures are unlikely, employers must look to their role as socially responsible members of a liberal and democratic society, and respect the rule of law by minimizing their collection of personal worker information.

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.

This paper closely studies Scotland v Canada to reveal the normative and substantive justice challenges facing immigration detainees across Canada. The Scotland decision at the Ontario Superior Court certified a habeas corpus writ as an individual remedy to release Mr. Ricardo Scotland from a pointless, seventeen-month incarceration. The decision frames Mr. Scotland’s detention as anomalous or divergent from an otherwise-functioning system. Against this view, this paper argues that access to habeas corpus cannot remedy the detention system’s scale of injustices. The paper contextualizes Mr. Scotland’s incarceration and the Superior Court decision against two primary claims: first, that the Canadian immigration and refugee determination system is arbitrarily biased against certain minoritized individuals, therefore transforming some people into detainable bodies; and second, that the global criminalization of migration trend has nested an arc of penal practices into Canadian policymaking and law, and this arc has seemingly normalized indefinite detention for some migrants. The paper concludes that restoration of access to habeas corpus cannot be understood as a substantive remedy to address the miscarriages of justice in the Canadian detention system.

Ashley Smith’s experience in the adult prison system flowed from certain of its systemic features. This article considers whether and how it is possible to reconcile the basic commitments of sentencing law, including the legal aims of punishment, with that systemic portrait. The youth court that ordered Smith’s transfer to adult custody relied upon an idealized conception of adult imprisonment, just as ordinary adult sentencing courts do. Judges purport to stipulate the severity of punishment, but tend not to consider how prison conditions will shape the severity of the sanction. Even where a particular defendant is likely to face unique difficulties in custody, courts tend to take notice in limited and rare ways. Smith’s experience in adult custody challenges us to more clearly identify, and to consider extending, doctrinal sentencing rules that represent a judicial concern with the effects and prospects of imprisonment in particular cases.

This article uncovers and investigates the vision of the world behind Max Weber's sociology of law. Taking a stand against Weber's epistemological nominalism, ethical relativism and political decisionism, the author critically analyses Weber's vision of science as a vocation and shows that his defense of axiological neutrality is not axiologically neutral. It represents rather a particular position within ethics, which affects his account of the disenchantment of the world, his vision of the rationalization of law and his decisionistic appeal for a strong political leader.

Le tournant sensoriel en droit nous invite à vivre différemment le droit en reconnaissant la centralité de tous nos sens dans l’étude et la pratique d’une vocation qui nous appelle à la quête de sens. Il vise à renverser l’anesthésie générale qui afflige les études en droit, et en droit et société : la juridicité elle-même, c’est-à-dire l’essence du droit – les sens du droit – est une question sensorielle et sensuelle.

In the present article, we examine the extent to which legal norms related tofamily matters are in line with the diverse social representations of currentconjugal life, more particularly as concerns the economic interdependence of thecouple during or subsequent to their union. Two Quebec legal measures compelattention: the division of the family patrimony and the obligation of supportpayable to the former partner. The present analysis is based on an empiricalstudy involving couples living together in Quebec. Whereas current legaldiscourse concerning unmarried cohabitation appears focused on spousal support,our survey has brought out two elements that could challenge the current legalapproach. When it comes to social representations, we find that the awarding ofsupport to the partner is highly controversial. The majority of our respondentsalso believe that the family patrimony should be shared equally, whether or notthe couple is married, and more especially when there are children, the propertyof the household being deemed to be the fruit of a joint and family-orientedeffort.

Life in industrial societies is governed by different kinds of “time”: mathematical or monochronic time predominates in the workplace but sociocultural or polychronic time prevails at home, particularly where young children are present. Many women report high levels of “time crunch” as they move between these two spheres and these effects are heightened for women in the professions. In this study, I test four hypotheses: women lawyers have higher time crunch levels than women in the general population. Time crunch is heightened among women who take primary responsibility for the care of young children and those who work in large law firms. As women grow older and shed some of the demands of child care, their time crunch levels drop. This study incorporates both quantitative and qualitative approaches: a regression analysis of “time crunch stress” is used to test the major hypotheses and excerpts from unstructured interviews deal with time management problems in the lives of these women. Findings from the regression analysis reveal heightened time crunch stress for the women in this study, particularly if they assume major responsibility for child care. Neither firm size nor age has a statistically significant effect on time crunch stress. Women lawyers are caught between two kinds of time and, over the long term, their careers assume shapes that differ from those of their male counterparts. These divergent career patterns suggest that current career theories are in need of reassessment and revision.

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.

This article advocates for the inclusion of intercultural dispute-resolution principles in Canadian courts to resolve conflicts between Indigenous communities and the Canadian state. These principles include judges' opening themselves up to discomfort, emotion, and unsettling in listening to Indigenous testimonies; facilitating ongoing processes for negotiation; and engaging the moral imagination to make court procedures more culturally appropriate for Indigenous testimonies. The author argues that by implementing these principles, courts can contribute to the creation of more respectful relationships between Indigenous and non-Indigenous people.

Cases might be valuable for more than the legal lessons they offer. This paper argues that cases present an archive of evidence that can help us reason backward to better understand the fissures in the ways humans interact and how our social, political, and economic systems generate tensions in their lives. More specifically, the paper looks through a small window into the lives of the people who find themselves caught between our collective and individual expenditure aspirations. It explores the circumstances in which individuals find that their outstanding tax debts pose a threat to their ability to maintain ownership of their home.

This article will explore data obtained through interviews with UK family law practitioners and clients with experience of financial relief on formalised same-sex relationship breakdown. It will focus on questions around how solicitors have approached and argued their dissolution cases (and the extent to which they have drawn upon heteronormative arguments and case law), and whether both they and the clients believed that civil partnerships are, and should be, treated similarly to marriages. The discussion will examine the different understandings of ‘equality’ employed, and question the ways that the participants relied on ideas of sameness and difference. It will be argued that the solicitors placed particular stress on sameness, and that heteronormative constructs of gendered inequalities have been transplanted into same-sex cases, in a system where practitioners’ submissions are based on ‘what works.’ This is despite the fact that lesbian and gay couples do not map onto the ‘template’ under which the parties have been subjected to different gendered expectations. Conversely, the clients were less willing to take on the full legal implications associated with (heterosexual) marital breakdown and less receptive of the solicitors ‘translating’ their matters to pigeonhole them into the existing framework.

The Inuit of Nunavik were recently granted the power to determine themselves, according to their “traditions and customs,” who is an Inuk according to the benefits granted by the James Bay and Northern Quebec Agreement. This appeal to the indigenous legal order may seem quite intriguing, as the Canadian state normally keeps a tighter rein on rules pertaining to membership in the Indigenous Peoples. From the point of view of legal pluralism, this article seeks to discern the potential sources of such Inuit “traditions and customs” and the reasons why the Canadian legal order is now willing to defer to the Inuit legal order, but also to bring to light the subtle limits of such deference.

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.