Le thème du pluralisme juridique hante la sociologie du droit depuis ses origines. Pour ne citer que ces exemples, déjà Eugen Ehrlich avait l'ambition de saisir la «diversité multicolore de la vie juridique». Et Max Weber distinguait le droit extra-étatique du droit étatique, objet formel de la science normative du droit. Le concept de pluralisme juridique, introduit plus tard pour saisir cette diversité, donnera lieu, comme on sait, à une ligne de travail spécifique dans le domaine «droit et société», matérialisée en particulier par la revue publiée depuis 1981 sous le titre Journal of Legal Pluralism; et il suscitera de stimulants débats. Jean-Guy Belley a apporté une contribution centrale à ces débats, notamment en signant l'entrée «Pluralisme juridique» du Dictionnaire encyclopédique de théorie et de sociologie du droit publié en 1988. Déjà bien des années plus tôt, il avait engagé une démarche rigoureuse de recherche centrée sur le pluralisme juridique comme paradigme fondamental de la science du droit. D'abord par sa thèse de doctorat complétée à Paris en 1977 sous la direction de Jean Carbonnier, par la suite comme professeur de droit des contrats et de sociologie du droit à la faculté de droit de l'Université Laval, enfin comme titulaire d'une Chaire de droit privé à l'université McGill. Ce rapport savant au pluralisme juridique s'est avant tout déployé sur le terrain de la sociologie du droit, une vaste entreprise dont le point culminant fut la publication, en 1998, de l'ouvrage Le contrat entre droit, économie et société.

Contrary to what prevails in the context of the Canadian and Quebec charters of rights, constitutional judges in India and South Africa have clearly recognized the justiciability and enforceability of social and economic rights. To explain this normative phenomenon, the author advance a hypothesis according to which the socio-economic conditions and the level of development of a country and the ideological context in which constitutional standards were adopted and are interpreted constitute factors that inevitably influence the courts and the conception judges have of human beings. The author therefore bring to light the formal conception of the person that Canadian judges promote by over-valuing individual autonomy in the interpretation of sections 7 and 15 of the Canadian Charter of Rights and Freedoms, and note that in countries marked by extreme poverty, the case law on socio-economic rights is more vibrant, since the Indian and South African supreme courts recognize human beings in all their dimensions.

This paper focuses on the increasing significance of flexibility arguments to UK employment equality law. It makes use of the well-evidenced legal and governmental preoccupation with working time to investigate the production and circulation of concepts of flexibility through equality law case reports from the period 2001–2010. With case reports as my main focus, I trace how flexibility emerges through legal documental networks, so as to work out the contours of our collectively imagined “efficient” and “well-balanced” working practices. Human actors and significant non-human actors combine within and across case reports to produce and support a general set of understandings about legal flexibility. These understandings, as we have seen, suggest that flexibility is just as much a matter of organic or physical capabilities as it is of time. Concepts of elasticity, adaptability, and balance, therefore, force us to reconsider the meanings and motivations of governmental and oppositional constructions of work-life dilemmas.

The topic of legal pluralism has puzzled the sociology of law since its origins. To quote an early example, the aim of Eugen Ehrlich was to grasp the “colourful diversity of living law.” Max Weber, too, made a distinction between law beyond the state, on the one hand, and state law, on the other, the latter being the formal object of normative legal science. The concept of legal pluralism, later formulated in order to capture this diversity, gave rise, as is well known, to a specific line of inquiry in the domain of law and society; it has found concrete expression particularly in the Journal of Legal Pluralism, published under this title since 1981, and has triggered energetic debates. Jean-Guy Belley has made a crucial contribution to these debates, in particular by writing the entry on “pluralisme juridique” for the Dictionnaire encyclopédique de théorie et de sociologie du droit, published 1988. Years before, he had begun an ambitious research undertaking centred on legal pluralism as a fundamental paradigm for jurisprudence, first with a doctoral dissertation under the supervision of Jean Carbonnier and later as a professor in contract law and sociology of law at McGill University. This scholarly relationship to legal pluralism developed first in the domain of sociology of law, through a comprehensive approach that culminated in 1998 with the publication of Le contrat entre droit, économie et société.

Questions about the ways in which colonial subjects were acquired and maintained, and how it was that multiple and often contradictory sovereignties came to overlap in history, may not be purely academic. We raise them today because they spring from issues that remain unresolved, concerning rights to land, resources, and self-determination. Following recent scholarship on the English East India Company, the author redefines the Hudson's Bay Company, during the period before widespread settler colonialism, as a state (or “company-state”), and in this way argues that the HBC-state possessed its own kind of sovereignty. The article make three main arguments: that it was up to the HBC, not the Crown, to found Rupert's Land, defend its establishments, make alliances with locals, and challenge intruders; that HBC rule extended to cover not only the company's employees but, eventually, an indigenous “home guard” population; and that the HBC welfare regime transformed the relationship between ruler and ruled.

Antidiscrimination legislation is the vehicle most commonly used by communities to demand equality, but how should such law best be employed? In this article, the Ontario Human Rights Tribunal decision in Hogan v. Ontario (Health and Long-term Care) is examined in relation to the removal of sex reassignment surgery from the Alberta Healthcare Insurance Plan in order to better understand the legal strategies designed to remedy different kinds of discrimination. This article argues that trans issues (involving people who identify as transgender, transsexual, or trans) ought not to be seen as additions to gay and lesbian issues legally or politically. Moreover, this article demonstrates that the fight for formal inclusion in legislation as a discrete or insular minority should be rejected by trans activists, as other legal strategies are better positioned to combat the processes of transphobia, thus potentially offering important steps towards substantive equality.

In history of legal ideas of the last generation in Canada, legal pluralism deserves an important place. There is a Quebec genre in the legal literature on pluralism that, for reasons one might well suspect, is less well-known elsewhere. The scholarship of Professor Jean-Guy Belley, one of the leading figures in the field, is deserving of a wider readership among non francophones. A translation on one of his most important papers, published at a critical moment in his personal development as a scholar, is presented here in the hope of introducing his work to new readers.

How to define and protect the dignity of women in armed conflict? This study attempts to understand the issues and dilemmas of the right to dignity and of questions of diversity in international humanitarian law through the example of the Israeli–Palestinian conflict. The author proposes an alternative approach to the right to dignity, which in international humanitarian law is primarily associated with women's sexuality. This alternative approach would engage more directly with the debates around social diversity that are occluded in times of war.

This article is based on fieldwork conducted in Montreal and Ottawa, between 2005 and 2009, with homeless persons in the criminal justice system and actors working at various levels in the criminalization and prosecution process. It analyses the strategies of control applied to homeless persons and their experiences in the judicial system in relation to criminal offences associated with their use of public spaces. The authors suggest that the issue of the visibility or invisibility of homeless persons is central to the tensions that characterize their dealings with the criminal justice system: although their visibility in public spaces contributes to their identification and profiling based on social characteristics, invisibility leads to violations of their fundamental rights and is a barrier to access to justice when they become involved with the justice system.

When British Columbia was founded in 1858, the colonial regime classified Indians as savage, on the anthropological scale of civilization, and then imposed on them civilizing tactics designed to create semi-civilized British subjects. By the 1860s the colonial regime feared that the growing presence of Chinese immigrants, whom they initially classified as semi-civilized on the anthropological scale of civilization, would subvert this objective. They therefore disempowered Chinese through the imposition of de-civilizing tactics designed to create barbarian aliens. By 1887 these combined civilizing and de-civilizing tactics had resulted in the reclassification of Indians as semi-civilized and of Chinese as barbarian.

Why has Quebec proved such a fertile ground for the study of legal pluralism over the last generation? It is not that formalism in law is any less tenacious in Quebec than elsewhere, or that the state-made law is held in lower esteem. If anything, the fabled cult of enactment that characterizes modern civilian methodology has been exacerbated in the run-up to the adoption of the Civil Code of Québec and the twenty years since that moment. The mixed nature of Quebec legal sources, given that mixité is seen as much as a historical fact as the basis for a way of knowing law, cannot explain the wealth of scholarly attention devoted to diversity in law. Whether Quebec's brand of pluralism for law comes from factors such as linguistic and cultural diversity, an ongoing contact with Aboriginal law, or a special experience with religious law is a matter of ongoing speculation. But in the final analysis, it is not unfair to think that legal pluralism has flourished in Quebec because of the work of a handful of imaginative scholars who have invested their talent in this intellectual project.

Professor Jean-Guy Belley is plainly one of their number. His work as a theorist of legal pluralism is celebrated in Quebec and well read in France. Yet his prodigious scholarly output is less well known elsewhere in Canada, where that work would likely be understood to have special relevance. Indeed, over the past ten or so years, Professor Belley has placed increasing emphasis on Anglo-American legal scholarship and common-law sources in his teaching and thinking about law. The translation of the foregoing essay has therefore been prepared at once as a respectful homage to a friend and colleague and in the hope that, in a modest way, it might encourage a wider readership for his important work.

While numerous contemporary studies, in both social psychology and sociology of the law, have addressed legal socialization and legal consciousness on the part of individuals, little work has been done on the complex social construction of the need and demand for legal services. This is by no means a rhetorical question; it involves a number of competing definitions of the relationship between the legal profession and the public, and thus justifies the legal services currently offered. The author shows that policies relating to access to the law and the justice system in France today seek to focus on the user, which means that users must be able to characterize their situation in legal terms and apply to the courts. The process of raising individuals' consciousness of the law is examined against the backdrop of increasing liberalization of social policies.

For most scholars, what we choose to research is largely determined by personal interest and a desire to produce new knowledge that will meaningfully contribute to the advancement of our chosen field of study. For those of us who do work in the areas of criminology and socio-legal studies, this pursuit of knowledge often requires that we gain access to public officials, state institutions, or government documents to collect necessary data. Regardless of whether we engage in quantitative or qualitative research, the findings we produce are highly dependent upon the information we are able to gather. Access therefore emerges as a key topic for researchers, raising important methodological concerns as well as broader political questions regarding the availability of information in liberal democracies.

However, although gaining access to data is a crucial step in the research process, it is one that seems to garner little scholarly attention within criminological and socio-legal circles. Indeed, although there are a countless number of textbooks on the market (many of which are used every year as required reading in undergraduate and graduate research methods classes) that discuss the various ways researchers can go about collecting and analysing data, very little is said about the processes involved in negotiating entry with the gate-keepers of these data. Much of what is discussed in most methods text-books and classrooms is often limited to questions of ethics and the moral duties and obligations of researchers to their participants, rather than critical considerations related to the actual practice of gaining access.

In this article Jean-Guy Belley examines the dichotomy between individuals and organizations, considered explicitly in connection with the development of the idea of legal pluralism. This idea—not the concept, which came later—had appeared in the early twentieth century, thanks to militant jurists who challenged the dominance of formal positivism and had an interest in legal sociology and anthropology. Their approach fitted in with legal realism (broadly understood), but specifically questioned the central role of the state in the production of law. That initial form of legal pluralism fuelled the renewal of legal thinking and fostered the development of the sociology of law, but it did not lastingly challenge the dominant status of positivism among jurists. In contrast, the “new legal pluralism” that has been rapidly growing in the last decades presents itself as new legal orthodoxy: paradoxically, the idea of legal pluralism, which originally illustrated the quest for intellectual emancipation from the formalist straitjacket (perhaps even emancipation of social life vis-à-vis the state), has turned into a new orthodoxy in the second era of modernity. That legal doctrine is clearly in harmony with the impersonal domination of private legal orders (especially of large economic organizations) over contemporary society.

In 1996, the Madagascan state enacted Law 96-025 (the GELOSE Law), which transferred the management of certain renewable natural resources to local populations by means of negotiated contracts. This legal strategy was innovative in many ways, namely by prescribing the use of Dina, a local traditional convention, in management-transfer contracts. By using Dina, the state claimed to reconcile the “legal” with the “legitimate” and to favour a sustainable management of these resources. This article focuses on the conditions of legitimacy of environmental norms in a pluralistic legal context marked by globalization. The use of Dina has not in fact contributed to an increased legitimacy of environmental norms, thanks to significant differences between its use and local regulatory procedures, insufficient governmental coordination in the implementation of Law 96-025, and a lack of resonance of sustainable development.

In his recent works, Jean-Guy Belley, based on his research on legal pluralism, puts forward a disenchanted diagnosis of late modernity as characterized by the prominence of organizational phenomena and by a new kind of “break between collective and individual consciousness.” This diagnosis merits comparison with other global interpretations of social reality, in particular Niklas Luhmann's systems theory. Such a comparison suggests a possible development of the model that can be derived from Belley's work. It is worth taking into account the differences between organizations, on the one hand, and, on the other hand, functionally differentiated systems such as economy, law, or science. This could enable us to revisit ongoing evolutions with respect to human individuality. The hypothesis is that individuals today act more and more as agents of organizations, and less and less as professionals carrying out functionally differentiated activities, and that they are invited to experience themselves less as individual subjects, than as organization-individuals.

The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears … All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government.

This article examines the discourses of crime and safety mobilized by Gary Doer's provincial NDP government in Manitoba between 1999 and 2009. Through a Foucaultian discourse analysis of statements made by Manitoba NDP members in the Legislative Assembly—in particular, the language and preconceptions drawn on by government members when speaking about matters of crime and safety—the authors assess the role of Third Way and neo-liberal rationalities of crime governance in a provincial crime-control assemblage that seeks to foster “security” beyond the limits of federally defined criminal law. Based on this analysis, the authors discuss how the Manitoba NDP is engaged in a process of “deputizing” public service and communities for purposes of crime control.

Although challenges and barriers to researchers' access are common across any number of empirical sites in socio-legal research—as suggested by the very nature of this special issue and the call for papers that generated it—it has been suggested recently that prisons and other institutions of penal confinement provide a particularly troubling case study. For instance, Loïc Wacquant argues that “the ethnography of the prison thus went into eclipse at the very moment when it was most urgently needed on both scientific and political grounds.” Although the causes of the decline as understood by Wacquant transcend problems with access (principally, for Wacquant, a transition from the “maternalist (semi-) welfare state to the paternalist penal state”), access, by all accounts, is an ongoing and significant concern. As Kimberly Jacob Arriola summarizes, “conducting research in correctional settings is extremely difficult. Inmates (and any other institutionalized population for that matter) are considered a special population deserving of additional research protections… Moreover, many correctional administrators may not see research as a priority and not want researchers ‘poking around’ for fear that they may discover something less flattering.”

Of course, one must be careful not to overstate the paucity of research inside penal institutions, especially given that the decline was probably less severe outside the US, and given that the last half dozen or so years have marked somewhat of a renaissance of scholarship on life inside carceral facilities. Also, the partial decline should not be taken as grounds for lionizing those researchers who do gain/have gained access to prisons and jails to carry out socio-legal research.

The purpose of this article is to evaluate from a legal and critical perspective the recognition of regional languages by the introduction, in July 2008, of article 75-1 in the French Constitution of 1958. The author evaluates the impact of the reference to regional languages; the contributions of this state recognition; its symbolic, psychological, and legal effects; and also its limits. Without calling into question the benefits of the state recognition process, the author concludes that a simultaneous self-recognition by the speakers themselves and by the non-speaker members of local communities is also necessary.