Volume
17, No. 1, 2002
Contents/Sommaire
Jacques Lenoble
Droit et gouvernance :
Pour une procéduralisation contextuelle du droit
Abstract
Profound transformations of Western democracies are apparent today.
These transformations express an insufficiency in traditional forms
of social organisation. The question of governance, of its efficiency,
has thus progressively become the major theme of our social debates.
Law and social sciences have provided two contradictory responses
to meet the need for a new approach to governance: either in terms
of efficiency or in terms of procedural ethics.
Even if both of these perspectives
contain an element of truth, they are no doubt perceived to be intuitively
unsatisfactory. It is this intuition of the insufficiency of these
two solutions which our hypothesis (contextual proceduralization)
aims to construct and to overcome. Our hypothesis states that the
two solutions share, beyond their apparent opposition, the same
presupposition which explains their parallel insufficiency. This
common presupposition concerns their answer to the question of the
'norm's mode of action'. How should we understand the operation
by which society aims to regulate itself and to act upon itself
by norms which it considers legitimate ?
Benjamin Berger
The Limits of Belief : Freedom of Religion, Secularism, and the
Liberal State
Abstract
Canadian courts are increasingly faced with the challenging task
of reconciling a secular, liberal polity with the Charter's guarantee
of freedom of religion. Conventional approaches to liberalism
and secularism have made this reconciliation particularly difficult
by promoting a conceptually unsatisfying vision of an a-religious
and hyper-rational public space devoid of moral commitments. At
the same time, liberal theorists have failed to fully appreciate
the nature and demands of religious conscience. This article considers
liberalism, secularism, and religious conscience, and argues for
an understanding of the relationship among the three that would
consist of a mediated pluralism premised upon a language of civic
values. Through a case law analysis, the author demonstrates that
this form of reconciliation is already tacitly at play in Canadian
jurisprudence. The most theoretically consistent manner of delineating
the limits of religious conscience in Canadian society, this approach
gives substance to religious freedom while maintaining due regard
for the common good and the gifts of secular liberalism.
Chris
Bruckert and Martin Dufresne
Reconfiguring the Margins : Tracing the Regulatory Context of Ottawa
Strip Clubs, 1974-2000
Abstract
This article employs recent writings on governmentality to make
sense of the ways that labour on the margins of the market and
morality are being re-configured in late modernity. By tracing
the trajectory of Ottawa strip clubs from 1974 to 2000, the authors
demonstrate how the industry and its workers are (re)constituted
by shifting discursive contexts, and by economic, legal and social
processes. During this time period the restructuring of the labour
process from entertainment to service interacted with regulatory
strategies including moral contamination arguments, city planning
and health management. The authors illustrate how within the normative
parameters established by the courts, questions of morality, responsibility
and risk get played out. Within this context, and consistent with
neo-liberalism, strippers are increasingly constituted as self-regulating
moral subjects. On the margins however, her "freedom" is conditioned
by a complex web of legal, community, as well as labour discourses
and practices.
Lise
Gotell
Queering Law : Not by Vriend
Abstract
This article explores the legal and discursive impact of R.
v. Vriend (1998), the Canadian Supreme Court's first unequivocal
pro-gay rights ruling. While not questioning Vriend as a victory,
it engages in a critical interrogation of the Court's reasoning.
Deploying the deconstructive insights of queer theory, the article
reveals the role of law in producing the rigidly demarcated
category "gay/lesbian" and speculates on its enduring discursive
legacy. Through a reliance on fixed sexual identity categories,
the liberal legal framing of "sexual orientation" in Vriend
works to reinforce normative heterosexuality and to privilege
those claims that reflect the legal refraction of anti-homophobic
struggles as pleas for minority rights. Arguing that the insights
of queer theory/politics can and should be brought into a productive
relationship with law, the article concludes with some thoughts
on the project of "queering law.
Jonnette
Watson Hamilton
Theories of Categorization : A Case Study of Cheques
Abstract
Categorization plays a key role in legal reasoning but it has
been under-theorized, particularly within common law legal systems.
In this article, the author uses the Canadian law governing cheques
to illustrate two different theories of categorization. The law
governing ordinary cheques is relatively certain and the results
of its application are mostly predictable. However, when that
law is applied to variations on the basic form - to post-dated,
certified, and double-dated cheques - the results are wildly unpredictable.
The reason for this, the author argues, is the theory of categorization
embodied in the governing legislation, the Bills of Exchange Act.
That act assumes cheques can be defined by a list of necessary
and sufficient conditions. However, such a theory cannot account
for consumer and corporate practices. A theory of categorization
based upon prototypes is necessary to explain the variations.
They are systematic and coherent elaborations of a central model.
They are not arbitrary because they are constrained by a prototype,
but neither are they predictable. The theory of categorization
assumed by the law obscures the complexity and fluidity of even
such a seemingly simple category as cheques. A prototype theory
of categorization, on the other hand, explains both the structure
of the category, accounting for the variations, and the source
of the law's indeterminacy.
Paul
Millar and Anne H. Gauthier
What Were They Thinking ?
The Development of Child Support Guidelines in Canad
Abstract
In the early 1990's Canada began a process designed to increase
the amount of child support to be paid by non-custodial parents
in an effort to reduce child poverty. In 1997, after several years
of study and coordination among the federal, provincial and territorial
governments, Parliament passed a set of guidelines that linked
the level of child support to the income of the non-custodial
parent. This paper examines the historical development of the
guidelines, and the assumptions that underpin them. The original
goals of the guidelines are compared with their apparent and likely
results in an attempt to provide a map for future adjustments
and policy revision.
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