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.
|
|
|
|
|
