Unlike the Canadian interpretivists, who conclude that judicial activism by the Supreme Court of Canada has undermined liberal constitutionalism, this article suggests that judicial activism has deepened constitutional supremacy. This argument is developed in two parts. In the first section, the theoretical limitations of original understanding are explored, largely as a way to illustrate the conceptual difficulties facing the Canadian interpretivists and their attempt to demonstrate the unconstrained nature of judicial power in Canada. In this section, we contend that the construction of original understanding is a highly subjective enterprise that creates the myth of judicial supremacy. In the second section, the empirical limitations of the claim of judicial supremacy are discussed by identifying the paradox of judicial activism — how judicial activism and its impact varies depending on the state actor at the centre of a Charter challenge. Through a case analysis of legal rights cases decided by the Supreme Court of Canada, this article confronts the myth of judicial supremacy by demonstrating that judicial activism against the police does not advance judicial supremacy but strengthens constitutional supremacy. By redefining the relationship between citizens and the state through an activist legal rights jurisprudence, the Supreme Court of Canada has effectively checked arbitrary uses of state power by the agents of law enforcement. This activism serves to advance constitutional supremacy, despite claims to the contrary by the Canadian interpretivists.

Andrew D. Hathaway
Charter Rights of Canadian Drug User: A Constitutional Assessment of the Clay Trial and Ruling

Abstract
In 75 years of cannabis prohibition in Canada, the latter third have been marked by considerable debate as to the propriety of invoking a criminal response to behaviour that is so prevalent and widely tolerated. The movement for reform of the laws prohibiting simple possession and use of the drug has intensified in recent years. Pragmatic adaptations on the part of Canadian legal institutions, aimed at mitigating the social and personal consequences of enforcing these sanctions, are applied routinely though selectively today. Nonetheless, actual policy reform seems far from inevitable, despite the increasing endorsement of factual evidence and widespread support for decriminalization. Given the legal-political impasse characterizing the cannabis controversy today, this paper examines the grounds on which prohibition may be viably opposed on the basis of respect for human rights. These moral grounds and remaining obstacles to legal reform are developed in view of the key contested arguments in R. v. Clay (1997), a landmark constitutional challenge as to the designation of cannabis as a prohibited substance in Canada.

Daniel Jutras
The Legal Dimensions of Everyday Life

Abstract
This essay argues for a practice of comparative legal scholarship emerging from the insight of legal pluralists. If everyday life is a normative order (or a constellation of normative orders), it can be compared to other, less transient normative orders. Continuity, discontinuity, shared and divergent characteristics can then be identified. The language and features of one can be used to understand the other. Through cultural translation, „microlegal“ and macrolegal systems can become the object of studies in comparative law. The argument proceeds in three steps. In the first part, drawing from the work of Michael Reisman, the conceptual apparatus of official law is enlisted to present the mundane encounter as a space of interaction subject to „legal“ ordering. The second part begins from the other end — it points to the uses of everyday life as allegory for fundamental problems of macrolegal ordering, as illustrated in the work of Roderick Macdonald. In the final part, the two strands are brought together in a comparison of the features of microlegal encounters, on the one hand, and large scale contractual relationships described by Jean-Guy Belley, on the other hand. Architectural continuity is manifested in the fact that similar tensions or polarities are part of the structure of normative orders at each layer, from the brief encounter to the formal, institutionalized, and large-scale examples of human interaction.

Reza Banakar
Integrating Reciprocal Perspectives : On Gurvitch‘s Theory of Immediate Jural Experience.

Abstract
This paper suggests that many of Gurvitch‘s ideas, which were originally presented in an abstract fashion, are still highly pertinent to socio-legal analysis. They may be employed in empirical research in a revised form, which would make them receptive to operationalisation. To this end, I focus on some of the main theoretical ideas developed by Gurvitch, reinterpreting them critically and in the context of the socio-legal research of the last few decades. Then, I apply them to empirical data collected through the author‘s personal research experience and some other empirical studies. The question prompting this examination is whether Gurvitch‘s theoretical insights could enhance our understanding of such data and thus open new avenues of socio-legal enquiry.

Section : Law and History

Daphne Barak-Erez
Collective Memory and Judicial Legitimacy : The Historical Narrative of the Israeli Supreme Court

Abstract
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.

Val Napoleon
Extinction by Number : Colonialism Made Easy

Abstract
Nationhood can be defined either positively, which will lead to a civic model of citizenship, or negatively, from which an ethnic model of citizenship will ensue. Each approach has a direct, formative effect on a nation‘s political power and on its national and international relations. The ethnic model of defining First Nations, advanced by colonial governments via legislation and modern-day treaties and adopted by First Nations, diffuses First Nations political power and distorts First Nations national issues by reframing them as primarily social and economic disadvantages. Conversely, an inclusive civic model of nationhood will enable First Nations to rebuild and maintain their political strength and integrity by moving far beyond establishing their boundaries and internal identity on blood and ethnicity. Current-day political and legal discourse on self-government, aboriginal rights and title, and treaties is largely founded on western constructs of nationhood that arise from European history and cultures. First Nations constructs of nationhood remain unarticulated or obscured, or are discarded at the self-government and treaty negotiation tables to the detriment of First Nations. The consequence of this approach is to further entrench Canadian structural power imbalances rather than create positive political, economic, and social change for First Nations. A different approach is necessary. First Nations and western constructs of nationhood and citizenship must be critically examined and compared, and First Nations must begin rebuilding inclusive, viable, civic societies based on nations, not on ineffective Indian Act bands.

David Kimmel and Daniel J. Robinson
Sex, Crime, Pathology :Homosexuality and Criminal Code Reform in Canada, 1949-1969

Abstract
This paper examines legal, political, and social processes culminating in the decriminalization of homosexuality in Canada in 1969. While it explores gay activism, international developments, liberalizing social attitudes, and the problem of long-standing anomalies in the Criminal Code, the paper‘s primary focus is on the re-conceptualization of homosexuality from a legal-criminal paradigm to a medical-scientific one and its impact on eventual decriminalization. In this vein, Foucaultian theory is used to illustrate how advancing psychiatric discourse on homosexuality affected social and legal understandings of same-sex attraction from World War II until the 1970s. As psychiatric and psychological professionals broadened their authority into wider areas of sexual practices and identities, they provided reformers and parliamentarians with an interpretative framework to disassociate homosexuality from criminality. While partially legalized in 1969, homosexuality remained firmly „pathological,“ thus entailing a continued, if reconfigured, „governing“ presence in some of the nation‘s bedrooms for years afterwards.

Book Reviews

Roger Cotterrell
Emile Durkheim. Law in a Moral Domain
– Guy Rocher

Joanna Shapland et Lode Van Outrive (eds.)
Police et sécurité : Contrôle social et interaction public-privé /
Policing and Security : Social Control and the Public/Private Divide
– Nicolas Carrier

W. Wesley Pue (ed.)
Pepper in Your Eyes : The APEC Affair
– Georges A. LeBel

David L. Lightner
Asylum, Prison, and Poorhouse : The Writings and Reform Work of Dorothea Dix in Illinois
– Tamara Myers

Sonya Michel
Children‘s Interests / Mothers‘s Rights. The Shaping of America‘s Child Care Policy
– Renée Joyal

Alain Dieckhoff
La nation dans tous ses États. Les identités nationales en mouvement

Mark Suzman
Ethnic Nationalism and State Power :
The Rise of Irish Nationalism, Afrikaner Nationalism and Zionism
– Mikhaël Elbaz

Jean-Luc Nancy
L‘Intrus

Jacques Derrida
Le toucher, Jean-Luc Nancy
– Mikhaël Elbaz

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