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.

This paper examines the role of official inquiry in the context of controversial deaths at a mine explosion in Canada. It documents how medical science and law contributed to the social production of official knowledge about lost lives in the Westray disaster and analyzes the significance of this public truth-telling on the registration of other truth accounts. The paper concludes by considering the counter-memories to official accounts and the role that a formal public inquiry into the disaster played in further transforming the fields of enunciation about the truth of death at Westray.

Occasionally, courts assume the role of historians and narrate stories of historic significance. The courts are fully aware of their “historical” role when they are called to make decisions about historical facts in a dispute that happens to be relevant to their decision. In contrast, this article centers on the unwitting writing of history by the courts when they describe past events as uncontested historical facts, usually through the doctrine of “judicial notice,” ignoring the fact that their story is not necessarily uncontested. As a test-case, the article focuses on decisions given by the Supreme Court of Israel, especially in the formative period of the State. The article argues that the historical narratives of judges, who are usually part of the mainstream in their societies, represent the nation's accepted version of its collective memory. It then tries to shed light on the importance of this narrative in the context of the court's institutional legitimacy.

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.

This article examines the effect of two recent constitutional decisions that have altered the course of assisted-reproduction policy in Canada: Reference re Assisted Human Reproduction Act (2010) and Pratten v British Columbia (2011). Together, the cases link a socially liberal conception of morality in federalism cases with an interventionist view of the state in Canadian Charter of Rights and Freedoms cases. This could result in a trend toward judicially mandated provincial, as opposed to federal, government action. These cases also provide further evidence of the judicialization of politics in Canada, whereby controversial moral and public-policy issues are increasingly determined in the courtroom.

Nineteen-year-old Ashley Smith died by her own hand in 2007 in a women’s correctional facility in Ontario, Canada. The subject of the coroner’s inquest into her death was her carceral experience and the failure of the system (leading to her death) during her time in adult federal corrections. The general focus of the inquest was on the state of federal women’s corrections in Canada and the mental health issues experienced by many incarcerated women. We produced a report and provided expert testimony at the inquest regarding the need for a developmentally informed correctional framework. In this article, which is based on our inquest report and testimony, we argue that a developmental perspective is a vital lens for understanding the incarceration experience of young women.

Canadian sentencing commissions have recommended that mental illness be considered as a mitigating factor in sentencing. With respect to sexual assault, some feminist literature asserts that over-reliance on psychiatric factors not only absolves the offender, but also serves to reinforce the myth that “normal” men do not rape women and children. In this study, data were collected on 97 Canada-wide sexual assault sentencing decisions from 15 August 1992 through 15 August 1993. This research does not find support for the hypothesis that sexual offenders are typically characterized as suffering from a mental disorder. Furthermore, using multiple regression, an interaction between judicial perception of the severity of the crime and judicial mention of psychiatric factors is found. The data show that psychiatric factors interact with perceptions of force, actually leading to harsher sentences. The impact of this variable turns out to be the opposite of what the literature would expect one to find: judicial perceptions of mental disorder act as aggravating factors in the sentencing of sexual assault offenders when a judge also believes that force has been used in the commission of the offence. The results of this research are then interpreted within the context of labelling theory.

This article examines the effect that cultural and technological changes have had on interpersonal communication and aims to provide an interdisciplinary explanation for the recent proliferation of defamation in electronic media. The authors argue that the absence of certain extra-linguistic cues and established cultural convention in the electronic environment often results in miscommunication which — if not itself defamatory — gives rise to emotional exchanges between interlocutors in a manner that provokes defamation. The authors begin their analysis with a discussion of defamation law as a recipient-oriented tort, demonstrating the importance of the context of communication in the determination of whether a particular remark carries a defamatory sense. In order to better understand how an online communication is received and understood by its recipients, the authors then investigate three differences between electronic and other media of communications: i) that the technology-mediated and text-bases character of electronic communication makes the process of communication more difficult and the incidence of miscommunication more likely; ii) that the nature of social interaction in the online setting has a tendency to increase hostile communications that might be considered defamatory; iii) that the cultural context and standards of communication that develop in online communities will reduce the significance of these hostile communications. Applying these considerations to the law of defamation, the authors conclude by rejecting the naive point of view that a libel published through the Internet ought to be dealt with in exactly the same way that a libel published in a newspaper is dealt with. The authors end by calling for further empirical research about the content that is produced as a consequence of contextual challenges in electronic communication.

In his recent work, Professor Harry Arthurs dismisses the idea of industrial citizenship as being a fundamental paradigm for the study of labour law, although he has supported it convincingly since 1967. Part of this change of mind is based on the legalization process of labour arbitration, which is due, at least to some degree, to the penetration of this field by complex human rights standards. For Arthurs, legal pluralism, characteristic of collective labour relations, is being progressively eroded by the movement of legalization initiated by the Canadian Charter. The author intends to put this thesis to the test, by examining what is going on in Quebec, as regards labour arbitration and human rights. The overall context is not exactly the same, the Quebec Charter being somehow of a specific nature, more open to social rights than it is the case for the Canadian Charter of Rights and Freedoms. But concerning the right to equality, there is enough common ground to allow a comparison. The author then uses the results of an empirical study (content analysis, semi-directed interviews) conducted at the School of Industrial Relations and the Centre de recherche en droit public of the University of Montreal, which considers discrimination cases at work decided by arbitrators and by the Quebec Human Rights Tribunal. This empirical study reveals the self-referential nature of this process in both cases: even if the Law is the same, the way of constructing and applying it is quite different in the sphere of labour relations (the arbitrators) and in the sphere of human rights (the Human Rights Tribunal). This may be explained by the diverging interests and values of the actors involved, and by the pressures the industrial relations system imposes on the arbitrators, who may be portrayed as a “coupling mechanism” between this social system and the legal one. This is not to say that Arthurs' legalization thesis is “wrong”, just that for the time being, it cannot be firmly asserted in the Quebec context. That being said, Arhturs' past and present work on industrial citizenship remains of the outmost scientific relevance to grasp the actual stand of industrial relations and labour law.

This paper examines the British legal policy in Hong Kong which preserved Chinese customary law as a subtle and indirect form of social control. The initial takeover of Hong Kong by the British in 1841 was motivated by economic interest in China. Hong Kong was to be developed into an entrepôt under a laissez-faire government. In order to pacify the local subjects and the Chinese government, English law was applied to British subjects but the local Chinese were governed by Chinese customary law. Gradually, the interpretation of customary law by English judges and common law courts transformed and even created a new understanding of this law. The preservation of customary law had the paradoxical effect of ousting the local narrative. One hundred and fifty-six years have passed; Hong Kong has fulfilled the British dream of being a flamboyant commercial centre. However, in less than 150 days, Hong Kong will be elevated from the status of a British colony to that of “special administrative region” of China. Nonetheless, the rhetoric of laissez-faire government continues to be reflected in the policy of “high degree of autonomy.” The fate of Hong Kong is certainly unknown. Hopefully, the study of its past experience will shed some light on its future.

This article employs a “policy cycle” framework to explore Bill C-51, legislation which contains Canada’s latest amendments to the “rape shield.” Through an in-depth evaluation of earlier rape shield reforms, as well as a content analysis of the legislative proceedings of Bill C-51, this paper reveals that, while the impetus for introducing rape shield legislation is to protect the equality and privacy rights of sexual assault complainants, the legislative process of these “policy cycles” focuses disproportionately on remedying due process concerns and less on the problems that arise in judicial implementation of the provisions. We situate this finding within the larger trend towards the “judicialization of politics,” and trace some of the institutional and structural obstacles that impede Parliamentarians from more effectively legislating to improve sexual assault trials for complainants.

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.

In June 1989, the Minister of Justice of Quebec announced the creation of a Groupe de travail sur l'accessibilité à la justice (unofficially, a Task Force on Access to Justice) charged with evaluating the effectiveness of the Quebec Legal Aid Programme and other measures to make justice more accessible to the population at large. The Task Force submitted its Final Report, entitled Jalons pour une plus grande accessibilité à la justice, in September 1991. This essay offers a critical review of the deliberations of the Task Force, including an assessment of how the Task Force initially conceived its mandate, and the processes by which its Final Report was generated. The essay also attempts to situate the recommendations set out in the Final Report within the broader context of North American access to justice theory. Finally, the essay presents various theses about the relationship between legal theory and the outcome of structurally independent deliberative bodies that are subject to the pull of the policy audience.

Since the beginning of the crisis and the rise of unemployment, the “social economy” has been given a strategic role in the defence of those abandoned by the capitalist economy. The social economy is regarded as an economy that produces social services and is also a tool for the integration of the unemployed. This role is all the more important because the social economy is historically carrier of democratic and social values and forms part of a social tradition dear to the workers' movement: a citizens' initiative, an alternative to the market economy with its injustice and social violence. It seems to us, from our experience in Belgium, that the social economy sector has also served as a Trojan horse for the deregulation of employment, constrained by the mode of subsidy and with the approval of its protagonists. We wonder if the call for the social economy development does not favor the weakening of the public service and the State's gradual withdrawal from public service? Is it an ambition or an adverse effect of the instrumentalisation to which this sector is subject?

At a time when divorce proceedings were nearly impossible in Québec, couples would seek an order of “separation from bed and board.” Between 1900 and 1930, the number of legal separation cases steadily increased. A sample of 500 such cases reveals that 83% of applications for separation were brought by wives against their husbands for ill treatment, while the husbands alleged that their wives committed adultery. Custody of the children was generally granted to the mother. After about 1920, judges were more inclined to grant legal separation on the grounds of irreconcilable differences, which demonstrates a shift in the expectations toward married life.

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.

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?