We have rediscovered the social diversity of law. From now on, legal pluralism becomes a paradigm to win over our preconceptions and ideologies of law, a fact to be constructed on the basis of a multidisciplinary theorization.

This paper addresses current tensions and initiatives respecting the manner by which provincial human rights commissions are confronting the pressures of financial restraint. It also focuses attention on theoretical debates respecting the reform or reinvention of governmental bodies. As such agencies are forced to do more with less, we can witness them engaging in an important process of institutional and administrative reconfiguration. This process is significant, touching on matters ranging from case prioritisation, through adjudication, to agency responsibilities regarding public education. The process of change, however, is to be understood more in light of the literature on the reform of government rather than its reinvention. And as all these agencies confront the need to engage in the reform of their services, questions arise regarding the degree to which such reform is subject to public awareness and scrutiny.

Quebec's Human Rights Tribunal is a unique phenomenon in Canada. The creation of a forum to adjudicate human rights violations does not, however, solve the inadequacies and inefficacies of a system designed to resolve complaints of discrimination. In this essay, the author first examines the accessibility of the complaint processing system while attempting to circumscribe and characterize the outlook on intervention of the Commission des droits de la personne et des droits de la jeunesse responsible for handling complaints of discrimination. Seventy five percent of the files open yearly are rejected at one point or another of the complaint investigation process. Moreover, most of the pending files are settled between the parties involved. Treatment and settlement of complaints on an individual basis may be satisfactory enough in a context in which a complainant is viewed as a client but it is unsatisfactory in terms of fundamental human rights. Taking into account the peculiarities of the Commission's “clientele,” this essay concludes with a statistical and sociological analysis of the effect of out-of-court settlements and this clientele's prevalent non-accessibility to the justice system. These clients must be satisfied with an administrative reformulation of their right to equality. Such a transformation of how equality rights are determined is troubling.

At a time when divorce proceedings were nearly impossible in Québec, couples would seek an order of “separation from bed and board.” Between 1900 and 1930, the number of legal separation cases steadily increased. A sample of 500 such cases reveals that 83% of applications for separation were brought by wives against their husbands for ill treatment, while the husbands alleged that their wives committed adultery. Custody of the children was generally granted to the mother. After about 1920, judges were more inclined to grant legal separation on the grounds of irreconcilable differences, which demonstrates a shift in the expectations toward married life.

Legal pluralism is a contemporary image of law that has been advanced by sociolegal scholars in response to the dominant monist image of law as derivative of the political state and its progeny. The pluralistic image redirects law and society research toward the myriad normative orders outside the circle of “the Law.” This essay considers the epistemological foundations of both legal pluralism and the legal monist image of law against which its proponents are reacting. It argues that contemporary pluralistic imaginations rest on the same impoverished view of law and its subjects that sustains the traditional claim that law comprises only the processes and institutions emanating from the modern political state. The authors propose an alternative image of law in an effort to redirect the sociolegal studies research agenda.

Challenging the traditional social-scientific legal pluralism of reified cultures and communities, the idea of critical legal pluralism presented in this essay rests on the insight that it is knowledge that maintains and creates realities: a critical legal pluralism imagines legal subjects as “law inventing” and not merely “law abiding.” The authors argue that, once the constructive, creative capacities of legal subjects are recognized alongside the plurality of these same subjects, the relationship between laws and selves reveals its complexity. They acknowledge that their approach is only one of many possible critical legal pluralist approaches; but they maintain that any reconception of law within a framework of critical legal pluralism is a form of emancipatory prescription. As definitions of law are revised and rejected, new vistas are opened for sociolegal scholarship.

This article explores arguments for and against proposals for statutory changes that would require Canadian judges to consider partner or “spousal” abuse when making decisions about child custody and access, in terms of the likely implications for women. The author discusses, in historic context, the relationships of social change to the evolution of social ideology and professional “knowledge” about gender and family and the influences of these on the evolution of family law, in order to demonstrate that legal changes alone are unlikely to produce positive benefits for abused women and their children. Moreover, an analysis of the legal discourse of judges as reported in the Canadian Reports on Family Law between 1983 and 1996 suggests the need for caution. Instead of judicial sensitivity to the special vulnerabilities of women in abusive situations, the case law indicates that judges are applying an “objective” incidents-based approach to assessments of abuse. Because this approach ignores the special vulnerabilities of women and makes it appear that abuse is symmetrical by gender, women may be disadvantaged if judges are required to deny or limit abuser's access to, or custody of, their children. The author concludes that, if what is intended is the protection of abused women and children, the solution lies less in giving more power to judges than in promoting social change through collective action, the evolution of professional “knowledge” that ultimately will find reflection in law, and the allocation of tangible resources for the benefit of abused women and their children.

Proposals for the demise of the notion of “legal pluralism” in sociolegal and legal anthropological studies have been put to the fore recently by various authors. In their view, the use of the notion carries connotations that basically misrepresent the constitutive dynamics of legal experience, up to the point of impeding the advancement of scientific understanding of law-in-society at present.

Canadian sentencing commissions have recommended that mental illness be considered as a mitigating factor in sentencing. With respect to sexual assault, some feminist literature asserts that over-reliance on psychiatric factors not only absolves the offender, but also serves to reinforce the myth that “normal” men do not rape women and children. In this study, data were collected on 97 Canada-wide sexual assault sentencing decisions from 15 August 1992 through 15 August 1993. This research does not find support for the hypothesis that sexual offenders are typically characterized as suffering from a mental disorder. Furthermore, using multiple regression, an interaction between judicial perception of the severity of the crime and judicial mention of psychiatric factors is found. The data show that psychiatric factors interact with perceptions of force, actually leading to harsher sentences. The impact of this variable turns out to be the opposite of what the literature would expect one to find: judicial perceptions of mental disorder act as aggravating factors in the sentencing of sexual assault offenders when a judge also believes that force has been used in the commission of the offence. The results of this research are then interpreted within the context of labelling theory.

The concept of community has a new importance for legal theory and legal sociology. It allows an escape from traditional conceptions of the relationship between law, state and political society. It makes possible the development of a pluralistic view of law that realistically recognises powerful globalising and localising pressures shaping contemporary law. Community is best thought of initially in terms of four ideal types of collective involvement, derived from Weber's types of social action. These imply different kinds of trusting relationships and different regulatory needs. A sense of attachment and a degree of stability in relationships is also necessary to community. Actual groups combine relationships of community in many different ways. Law's contemporary task is to express and coordinate the regulatory needs surrounding structures of community within and beyond the nation state.

From the perspective of the systems theory, Gunther Teubner provides a meaningful contribution to the theory of legal pluralism. Borrowing from Max Weber's idea of a polytheism of values, Teubner shows the relevance for contemporary society of the Weberian metaphor of the struggle of the gods, although shifting the analysis towards the properly sociological ground of a plurality of discourses and systemic rationalities. This reconstruction of the theory of legal pluralism in the wider context of a fragmentation of autonomous spheres of rationality enables Teubner to avoid some of the obstacles which often affect the pluralist view of law, such as a monolithical representation of State law and the absence of a clear notion of what is distinctively legal.

Abstract—This essay documents how the city of Oshawa, Ontario engaged in a campaign of “civic sanitation” through the enactment of a public nuisance by-law that constructed the discursive form of the loiterer. The relationship between visualization and regulation inherent in this “vision” of social hygiene is examined. The author concludes by reflecting on the forged character of law in late modernity.

Cultural studies provides an interesting conceptual perspective on legal pluralism for a number of reasons. Rather than asking ontological questions about parallel legal systems, cultural studies frameworks encourage questions about the meanings which might be generated for “law” at the plural sites of intersection of regulatory phenomena: legal meanings must defer to questions about how a subject is positioned, subjected. Narratives of culture, broadly conceived, also allow us to notice the diverse, fluid and often contradictory patterns of regulation and discipline created when there are politically powerful beliefs in the singularity of order and certainty. The efforts in Anglophone cultures to create an “English” heritage safe from various threatening others is echoed in jurisprudential specifications of the criteria of legality.

It is possible to broadly characterize social theory in terms of routine moves which are shaped by a priori contexts, and deep structure moves which seek to delineate those shaping contexts and, sometimes, to call for new ones. Thus, for example, in the environmental literature we see the routine moves of so-called “shallow ecologists,” who tend to privilege natural systems only to the extent that they serve human ends, and the deep structure moves of “deep ecologists,” who value non-human life forms and systems for their intrinsic value. The author discusses those moves and demonstrates two deep structure theories in the progression of the spiritual view of nature from animism to its current form of instrumental rationality, together with the implications of liberal political ideology for environmentalism. He then advocates an alternative approach to social theory, grounded in the notion that institutional innovation, properly understood and “managed” along a trajectory free of the dead hand of deep structure theory, may hold the promise of transformative possibilities that are neither trivial nor unrealizably utopian. The implications for environmental reform are considered, together with an example taken from the practices of industrial production.

The system of temporary protection set out in accordance with the conclusions of the Executive Committee of the United Nations High Commissioner for Refugees (Excom) offers the necessary guarantees for the protection of the refugee under such a system. However, regimes of temporary protection recently established in a number of states (for example Germany and the United States) do not respect the conclusions of Excom nor the Convention Relating to the Status of Refugees of 1951 and are based on the objective of controlling migratory flows.

The implemention of a liberal normative system during the XIXth century was a phenomenon whose complexity we are still grappling with today. Concretely, for societies undergoing deep political and economical mutations this implies a capacity to adapt laws to meet the new imperatives of democracy and the market economy, the two central forces that effect the mode of regulation employed throughout Western societies. The difficulties of implementing a legal system and the development of legal institutions are compounded by the historical weight of this process. The freedom of association which is at the heart of the liberal regime brings to light a potential contradiction between the rights of individuals and of collectivities. The author exposes the evolution of this contradiction and its implications.

The following article attempts to summarize the results of a study of Canadian criminal case law materials relating to aboriginals accused over the last hundred years. The goal of this analysis was to ascertain the openness of Canadian state law to certain forms of legal pluralism. The concept of “dialogism» was used to measure the intensity of recognition or application by a central legal order (Canadian criminal law) of values and norms pertaining to another legal order (legal concepts of aboriginal peoples). Analysis of the case law shows Canadian criminal law slowly evolving towards a weak form of legal pluralism. Early decisions by the courts denote an absence of cultural dialogue, with the exception of those of the circuit court in the Northwest Territories. The more recent case law indicates that if courts are reluctant to recognize the relevance of aboriginal values in the matter of jury selection, trial location and criminal liability, they are more and more receptive to legal pluralism on sentencing issues, where a form of power-sharing is possible between judges and native communities.

The author seeks to make sense of the political and ethical cleavages associated with inner city gentrification in Vancouver, by an examination of the differing perspectives on real property deployed by the opposing constituencies. He identifies a marked division between dominant and community-based readings of property as an economic, political and legal category, associated with opposed visions of space, place and history. Conclusions are drawn relating to the significance of a geographically informed theorisation of decentred legalities, and the complex politics of power, resistance and domination.