Canadian
Journal of Law and Society
volume 20, no. 2, 2005
Articles
Roderick A. Macdonald
& Jonathan Widell
Office Politics (Again)!
Abstract
This paper explores various dimensions of the professorial office
as a "legal" space. The office of a professor is, in one
dimension, just a generic geometric place without a purpose or occupant
that embodies potential in purely formal terms.
But it is also a site, in that its very
location, size and organization reflect functionality-the values,
process and decision-making institutions by which occupancy is determined.
In addition, the office embraces a stage and role through which occupants
interact with colleagues, students and strangers in ways that confirm
or disconfirm relationships of power and subordination. At the same
time, the professorial office has a performative dimension, through
which the normativity of a community-of professors, staff and students-is
imagined and acted upon. Still again, in yet another dimension, it
is a ritual space where professors work, relax, reflect, and reflexively
contemplate patterns and forms of thoughts. Such an office exists
wherever its occupants choose to place it. Finally, the office is
a non-place of personal discovery-an intimation of space that has
no location apart from the relationships that it creates and by which
it is created.
Dayna Nadine
Scott
When Precaution Points two Ways: Confronting "West Nile Fever"
Abstract
This study investigates the role of an emerging legal doctrine, the
precautionary principle, in the development of the plan to manage
West Nile Virus in the City of Toronto during the 2003 season. Specifically,
it asks whether the precautionary principle, widely expected to transform
environmental and public health decision-making, operated as a map
or guide to officials trying to navigate through the uncertainty associated
with both the virus and the "cure." Although the study focuses
on a very particular local context, it also addresses the broader
challenges that are gathering for governments hoping to lean on the
precautionary principle for policy guidance in the face of controversy.
In the case of West Nile Virus, public health officials seemed to
confront an intractable problem: taking precaution with respect to
the virus, an uncertain public health hazard, meant facing the uncertain
environmental and health risks associated with chemical pesticides.
The study draws on qualitative empirical data gathered from participant
observation sessions in the Toronto city council chamber and comprehensive
semi-structured interviews with almost a dozen key policy actors.
The purpose of this detailed empirical analysis is to evaluate the
potential of the precautionary principle as a policy instrument in
light of a common claim of the principle's critics. Can it point the
way out of controversy? Or does the precautionary principle, as is
argued by legal academics such as Cass Sunstein, "point in no
direction at all"?
Willem de Lint,
Ryan Gostlow & Alan Hall
Judgement by Deferral : The Interlocutary Injunction in Labour
Disputes Involving Picketing
Abstract
In this paper, we investigate the institutional interdependence between
courts and police in the governance of picketing. The analysis contributes
insight into how economic and security rights are balanced against
political and civil rights in the oblique affirmation of a grounding
of authority which is arguably more potent because of the indirectness
of its everyday construction. We proceed by deriving the concept "judgement
by deferral" from current literature on governance. We apply
this to an investigation of how courts evaluate injunction claims
in cases involving picketing and how police responsibilities are understood
in these cases. We then examine police perception of their role in
the governance of picketing and demonstrate how both the courts and
police engage in deferral practices to avoid hard decisions. Finally,
we show how these practices comprise a systemic approach to the governance
of picketing, which can nonetheless break down in its application.
Our sources for this assessment consist of court cases and our own
interview samples drawn from police, union and management officials.
Adrian A. Smith
Legal Consciousness and Resistance in Caribbean Seasonal Agricultural
Workers
Abstract
Workers from the Commonwealth Caribbean employed seasonally on Canadian
farms through the Canadian Seasonal Agricultural Workers Program are
thought to be ignorant of prevailing labour standards. This marks
not only an empirical claim about legal ignorance and knowledge, but
also a theoretical claim about the role law assumes in capitalist
relations, particularly in the ways law shapes consciousness and behaviour.
The seasonal agricultural worker context presents an intriguing opportunity
for the application of legal consciousness studies. Drawing specifically
on the emerging field of new legal consciousness studies, with its
emphasis on the legal consciousness of non-legal professionals, the
paper contests both the empirical and theoretical aspects of the legal
ignorance claim. New legal consciousness studies undergo an important
revision to account for law's role in forming the background rules
for liberal capitalism. In this respect, the paper points the direction
for future study of the relationship between seasonal agricultural
worker resistance and law.
________________________________________________________________________
DOSSIER : Aboriginal Rights Issues
Val Napoleon
Delgamuukw : A Legal Straightjacket for Oral Histories?
Abstract
The courts' continuing
treatment of aboriginal oral histories as cultural artefacts is appallingly
ethnocentric despite recommendations to consider the perspectives
of aboriginal peoples and adapt the law of evidence. In this paper,
I describe how Chief Justice McEachern of the British Columbia Supreme
Court responded when a Gitksan witness, Gwaans, presented her adaawk
as evidence of Gitksan land ownership and social organization. The
Court was not able to hear or accept the adaawk as presented
- a legal and political institution rather than a simple cultural
artefact or chronological history record. The forms of expression,
symbolism, and inter-connections between the worlds of spirits, humans,
and animals proved to be beyond the grasp of the trial judge. Will
the adaawk be treated any differently in future litigation? This paper
addresses a number of concerns such as having the judiciary (1) apply
a reductionist approach to the adaawk, and (2) evaluate the
adaawk according to the rules of court instead of those inherent
in the adaawk.
Karine Gentelet
Les revendications politiques des Premières Nations du Canada:
Le concept de nation comme outil contre-hégémonique
Abstract
A determining factor in the evolution of their power relationship
with the State was the fact that Native groups became conscious of
their identity and collective power and that they defined their collective
identity using the concept of "nation". The federal positions
have also changed on the question of Aboriginal collective rights
and the State has modified certain principles in its policies. The
Native groups have redefined their collective rights according to
their needs and political objectives. With that concept, they have
developed a form of counter-hegemony, releasing them from the domination
of the State and enabling them to attain the political autonomy they
are seeking.
Christopher Alcantara
Certificates of Possession and First Nations Housing : A Case Study
of the Six Nations Housing Program
Abstract
A common misconception is that land on Canadian Indian reserves is
collectively owned by the band. In reality, individual band members
can access four types of private property regimes on Canadian Indian
reserves. This paper looks at one of these regimes, Certificates of
Possession (CPs), to determine the benefits and consequences of CPs
for economic development on Canadian Indian reserves. In particular,
the paper focuses on how Six Nations band members have been able to
use CPs to get around the seizure for debt restrictions in the
Indian Act to acquire mortgages to build and own their own housing.
The paper finds that CPs, in conjunction with band and/or government
support, may provide a practical solution for tackling the housing
problems that face many reserves in Canada.
________________________________________________________________________
Review
Essay
Yoav Dotan
The "Public", the "Private", and the Legal Norm
of Equality
Abstract
Should courts seek to apply the concept of equality-as developed in
public law litigation-in controversies between private parties? In
this review article I argue that the distinction between the concept
of "private" and "public" in current society is
essentially based on the way equality is treated in each of these
fields of social activity. This is because things in our society that
are regarded as "public" are those that belong, equally,
to everyone, while the things that are "private"-do not.
Accordingly, the public field is dominated by the norm of political
equality, while the private law field is dominated by the absence
of a strict requirement for equal distribution of economic goods.
So far, the phenomenon of courts applying the norm of equality in
the private law field referred, largely, to cases in which courts
enforced some fundamental requirements of political equality, such
as the norm against racial discrimination, in private law litigation.
Thus, this phenomenon does not raise serious questions of institutional
legitimacy in current liberal democracy.
|
|
|
|
|
