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Volume 22 No. 1, 2007
Marius Pieterse The Legitimizing / Insulating Effect of Socio-Economic Rights Abstract This article investigates the manner in which states may rely on their socio-economic obligations, in order to bolster the constitutional legitimacy of laws and policies that aim to promote social citizenship. Focusing mainly on the South African government’s use of its constitutional obligations to progressively facilitate access to health care services, the article shows how states may appropriate the obligations flowing from socio-economic rights to legitimize socio-economic laws and policies and partially to insulate them against rights-based attack. Through this legitimizing / insulating effect, it is argued, socio-economic rights enable states to counter the use of civil liberties by powerful private social actors, in attempts to thwart state efforts at socio-economic reform. Even if they are limited to fulfilling this legitimizing / insulating role, justiciable socio-economic rights may therefore advance the cause of social justice.
John McMullan Lost Lives at Westray: Official Discourse, Public Truth and Controversial Death Abstract 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.
Tamatoa Bambridge Généalogie des droits fonciers autochtones en Nouvelle-Zélande (Aotearoa) et à Tahiti Abstract From a comparative perspective between New-Zealand (Aotearoa) and Tahiti, indirect and direct administration during the colonial period (1840-1880) has produced similar effects: the acknowledgment of local custom in an effort to eradicate it. Polynesian answers were very similar: war or passive resistance, with more or less success. As far as the results of colonial policies are concerned, land spoliations were significant in both cases, though perhaps more important in New-Zealand then in Tahiti. The development of these Polynesian societies, as they take into account their cultural histories, will become a subject of increasing importance.
Bruce Feldthusen Civil Liability for Sexual Assault in Aboriginal Residential Schools: The Baker Did It Abstract This article relies on reported judicial decisions to examine how individual plaintiffs have fared in tort actions arising from alleged sexual abuse perpetrated in Aboriginal residential schools. It concentrates on three distinct issues: credibility, damage assessment, and vicarious liability. It concludes that tort law has failed the residential school plaintiffs. Their stories are seldom believed in contested litigation. The law fails to take into account the totality of the residential school experience in assessing damages. Indeed, damages are reduced to reflect uncompensated harm from residential schooling. The government is not held vicariously liable for all abuse perpetrated within the residential schools. These problems are similar to those experienced by other plaintiffs seeking redress for sexual abuse. However, residential school survivors have faced additional challenges in tort litigation for sexual abuse, over and beyond the formidable challenges faced by others. We could have and should have done better.
Garry C. Gray & Tomas Nikolakakos The Self-Regulation of Virtual Reality: Issues of Voluntary Compliance and Enforcement in the Video Game Industry Abstract The video and computer game industry now generates profits greater than Hollywood films and pornography, and ranks second in earnings only to the music industry. The most popular games are using more explicit representations of crime, drugs, sex, and extreme violence. Furthermore, with advancements in technology, the violent and sexual content of video games are becoming increasingly realistic and interactive. As a result, independent national debates have been taking place globally as to whether modern video games constitute a new social problem. In this study, we perform an interactive content analysis of the most popular video games and demonstrate that “socially questionable content” is just as prevalent as violent content in the most played video games. In addition, we examine “how” video games are rated by the Entertainment Software Rating Board (ESRB) and issues of voluntary compliance regulation.
Don J. Manderscheid First Nations and Self-Government: A Matter of Trust Abstract This paper examines the fiduciary or trust relationship that is created between the members of a First Nation band council and the band members. In particular, the discussion is concerned with the fact that as the local form of government, a First Nation band council is somewhat analogous in its composition and operation to that of a municipal council. The respective nature and scope of the fiduciary relationship that is created, both in reference to a First Nation band council and a municipal council, is then reviewed in detail. In terms of aboriginal self-government, the concept of this fiduciary relationship is significant, as the municipal model of self-government would appear to be the direction taken by First Nations’ people in their quest for self-government. Given this fact, the discussion then identifies the inherent statutory inadequacies of such a form of self-government in failing to recognize and adequately address this fiduciary relationship. Due to this statutory failure, realization of a functional form of self-government by First Nations’ people based upon a municipal format may be adversely compromised. Furthermore, despite the chosen model of aboriginal self-government, in order to ensure its continued viability, it is imperative that the governmental model adequately accommodate the issues posed by this fiduciary relationship.
Nicolas Carrier The Autonomy and Permeability of Law: The Case of the Canadian Prohibition of Cannabis Abstract Niklas Luhmann’s sociology proposes that law is an autonomous social system, which cannot be determined from the outside. In this theoretical framework, law’s relations with its environment are mainly grasped with the concepts of autopoiesis and deparadoxification, and through the corresponding paradox of openness through closure. It provides a framework to explore intersystemic relations which refuses a vertical, linear domination of law by other discursive formations. This paper takes (some dimensions of) the 2003 re-validation of the constitutionality of the prohibition of cannabis by the Supreme Court of Canada as a pretext to theoretically clarify and empirically explore this framework. In the case presented here, law notably gives precedence to some biomedical objects over the liberal doctrine. It may well do the exact opposite in future operations. Sociology is condemned to be surprised by the creativity that law displays in autonomously maintaining and transforming itself.
Book Reviews
W.
J. Waluchow
Roderick A. Macdonald
Marie-Claude Prémont
C.G.K. Atkins
Kavin Hébert
Paul Millar
Sean Robertson
Dominique Clément
Bernard Duhaime
Robert Diab |
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