Robert Leckey
Profane Matrimony 
Abstract

Theresa Shanahan
Legal Scholarship in Ontario’s English-speaking
Common Law Schools
Abstract

Hugo Hardy
La critique perelmanienne de la théorie pure du droit
Abstract

Andrea Brighenti
On Territory as Relationship and Law as Territory
Abstract

C.G.K. Atkins
A Cripple at a Rich Man’s Gate: A Comparison of Disability,
Employment and Anti-discrimination Law in the United States and Canada    
Abstract

Stéphane Bernatchez
Droit et justice constitutionnelle de Habermas à Luhmann
Abstract

Voula Marinos
The Meaning of “Short” Sentences of Imprisonment and Offences
Against the Administration of Justice: A Perspective from the Court
Abstract

Book Reviews / Comptes-rendus

Jeffrey M. Sellers
Governing from Below: Urban Regions and the Global Economy
Cambridge, Cambridge University Press, 2002, 395 p.
 Randy Lippert   

Zoltan Barany & Robert G. Moser (eds.)
Ethnic Politics after Communism
Ithaca, Cornell University Press, 2005, 282 p.
Alexandra Jivan   

Albin Eser & Hans-Georg Koch
Abortion and the Law: From International Comparison to Legal Policy
The Hague, TMC Assert Press, 2005, 348 p.
Karen Zivi
 

Marcel Martel
Not This Time: Canadians, Public Policy and the Marijuana Question, 1961-1975
Toronto, University of Toronto Press, 2006, 270 p.
Michael Boudreau 

Robert Leckey
Profane Matrimony 

Abstract
Recent debates over same-sex marriage prompt reflection more generally on the competing norms regulating marriages. Two supremacy claims emerged in the debates, one that religious traditions provide the supreme law of marriage, another that civil marriage is entirely secular and its supreme law is the Canadian Charter of Rights and Freedoms. This paper identifies similarities in these claims. Both wrongly ascribe an internal uniformity to cultural communities. Referring to historical amendments to marriage law, the paper argues that both claims are unfaithful to the Canadian tradition of marriage law. Amendments to the prohibited degrees of relationship and the introduction of federal divorce legislation show the federal Parliament to have developed a civil or profane marriage in conscious opposition to religious forms. Since the 1880s, marriage law has been periodically altered on the basis that it is wrong in a plural, secular society to impose religious views on nonbelievers. Parliament has not simply followed top-down norms, but also regarded social practice as a source of marriage norms. Past instances of law reform indicate a rich political tradition of argument and contestation, one in which the churches have not maintained consistently that the civil law of marriage should mirror religious rules. Civil marriage and religious marriage are not, as claimed by the standard bearers of the Charter, unrelated. They stand instead in a constantly adjusting relationship of tension and difference.

Theresa Shanahan
Legal Scholarship in Ontario’s English-speaking
Common Law Schools

Abstract
This paper considers the current state of academic legal research in a neo-liberal policy environment. The purpose of this study was to obtain empirical data profiling the research activities of full-time, tenure-stream, law professors in Ontario’s English-speaking common law schools to ascertain trends over the past 20 years. The implications of the findings were critically analyzed in terms of a socio-critical framework that considers the relationship between knowledge and professionalism within the context of the political economy of higher education. The findings suggest that while changes in higher education associated with neo-liberal policies are challenging law professors’ research context, these same changes have contributed to their strengthened position in the university. The findings suggest this is largely because of factors not associated with research, such as the strong teaching mission and the deregulated tuition fees associated with the professional program, as well as the proximity to a wealthy and entrepreneurial profession that has strong connections to the market and offers potential endowments and donations. Some participants believed this allowed law professors to preserve their professional autonomy in relation to their work and scholarship while others maintained that the law itself had been penetrated, and possibly compromised by a neo-liberal agenda.

Hugo Hardy
La critique perelmanienne de la théorie pure du droit

Abstract
Chaim Perelman’s critique of Kelsen’s pure theory of law concerns mainly two elements: his theory of interpretation and his conception of court decision. Although a court decision is never formally deduced from the law, one cannot say neither that it is “arbitrary”: it leans on reasons, which cannot be reduced to the judge’s individual motives and whose value can thus be assessed by the “science of law.” As for interpretation, it is not limited to establishing the meaning of the law’s terms, but contributes also to specifying the meaning of the law itself in relation to cultural values—even if these values are not explicitly mentioned by the law. In confining the judge’s role to the strict application of the law, the Kelsenian conception of judicial power defies the Kelsenian epistemological imperative, which is to describe “how the law is, not how it ought to be.”

Andrea Brighenti
On Territory as Relationship and Law as Territory

Abstract
Whereas traditional conceptions tend to conflate territory and its physical spatial extension, this paper advances an argument to oppose such reductionism. It explores the features of a non-intuitive, radical conception of territory and proposes to apply it to law. Relationship, rather than space, is suggested to be at the conceptual core of territory, so that spatial and non-spatial territories can be seen as superimposed one onto the other and endowed with multiple connections, according to different scales and degrees of visibility. Territory is regarded as an activity of boundary-drawing and as a process which creates pre-assigned relational positions, both of which are key concerns for law. From this perspective, law is an inherently territorial endeavour. The focus of enquiry is consequently shifted to the actors who, by building and shaping their social relationships, draw different types of boundaries, on the technologies they apply, and the aims they attempt to achieve through boundary-drawing.

C.G.K. Atkins
A Cripple at a Rich Man’s Gate: A Comparison of Disability,
Employment and Anti-discrimination Law in the United States and Canada  

Abstract
This paper outlines the history of employment equity and human rights legislation with regard to disabled persons in both the U.S. and Canada. It compares the two countries’ statutory and judicial approaches to the problem of achieving equality for disabled citizens in the workplace. In drawing the comparison, it draws attention to both the positive and negative aspects of the two jurisdictions. In conclusion, it suggests that Canada draw on the “universal” and “holistic” approaches embodied in the environmental portions of the American ADA and in Canadian judicial decisions to create a novel legislative solution. It suggests that Canadian statutes aimed encouraging equality for disabled persons should echo existing occupational health and safety laws, by requiring all employers to abide by a proscribed standard for universal accessibility in all workplaces, regardless of the presence or number of disabled employees.

Stéphane Bernatchez
Droit et justice constitutionnelle de Habermas à Luhmann
Abstract

In the debate over the legitimacy of judicial review, Jürgen Habermas put forward two justifications for the role of constitutional judges within deliberative democracy. Judicial review must examine the procedural conditions of the legislative process and participate within a learning process that would ensure the continuous redefinition of the Constitution. This procedural concept of constitutional justice remains subject to the scrutiny of the other procedural theories. Whereas the theory of contextual proceduralization questions the concept of the legal judgment and more specifically the habermassian conception of the application of a legal norm, the systemic theory offers the conceptual framework required to explain this learning process and the function of judicial review in the legal system. Therefore, Habermas’ procedural theory is extended in line with alternative theories of the proceduralization of law.

Voula Marinos
The Meaning of “Short” Sentences of Imprisonment and Offences Against the Administration of Justice: A Perspective from the Court
Abstract

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.