Barely three years ago, as chairman of the SSHRC's Consultative Group on Research and Education in Law, I released a report entitled Law and Learning. This report — in its diagnosis hardly more than a systematic compilation and empirical verification of “what we knew but could not tell” — contained a series of recommendations for the invigoration of Canadian legal scholarship. Several of these recommendations related to the need to diversify the types of legal research being conducted, to strengthen the research community by the development of networks and centres of activity, and to communicate the results of new research endeavours to relevant professional audiences, as well as to the public.

For me, therefore, the establishment of the Canadian Law and Society Association and the publication of the Canadian Journal of Law and Society are events of special significance. I am pleased — indeed flattered — to be involved in these new and important enterprises, albeit in a largely symbolic way. My pleasure is only enhanced by being afforded both a platform for pontification (the Editor has absolved me from the obligation to provide footnotes), and a collective script to which I can add what amounts to a postscript to our report.

In the study of the constitution, courts and judicial behaviour, two distinct strands can be identified. First, the study of constitutional law, which in the 1920s was a paramount concern of the emergent political science discipline, had become by the 1960s a very marginal interest of Canadian political scientists. Although recent events have led to a revival of interest, still only a small handful of political scientists in the English or French-speaking branches of the discipline devote much of their scholarly attention to the law of the constitution. The study of judicial interpretation of the constitution has been almost completely preempted by legal academics. In the meantime, the empirical investigation of courts and judicial behaviour, a subject which in earlier years attracted the attention of neither lawyers nor political scientists, has been slowly emerging as a distinct field of interest for social scientists and empirically oriented legal scholars, although it remains very much at the margin of political science.

Legal scholarship has changed dramatically in this century. Early in this century, legal scholarship found form and coherence in a method of study and teaching often referred to as the doctrinal approach. This approach placed its emphasis on the determination of rules, principles and procedures through the detailed analysis of cases — a method that goes back at least as far as Langdell's reforms at the Harvard Law School. There can be little debate as to the professional success of this approach to legal scholarship. It provided a method for teaching and for the writing of legal treatises and law review articles that endures to this day.

Yet if there was a purity to this methodological emphasis on “law in the books,” there was also an incompleteness that led others to call for research on the “law in action.” Often known as the legal realist movement, and best documented in its emergence at the Yale Law School, this approach to legal scholarship called attention to gaps between doctrine and practice. It is interesting to note that both the traditional doctrinal approach and legal realism were eager to claim the mantle of science. In doing so, the doctrinal approach focused on recorded cases as its units for observation and analysis, while the realists moved beyond these official accounts to examine the way the law actually was applied and affected people's lives. The realist's point was that the law often only affected social life indirectly and that doctrine frequently affected society in uncertain and unanticipated ways.

This article is part of an effort to place current research on the Canadian judicial process into a broader theoretical context. This effort developed first from a sense that the legal and behavioural frameworks that have dominated the explanation of judicial decision making in the United States Supreme Court obscure more than they illuminate about judicial decision making in Canada; and second from the realization that the most illuminating American studies — those that trace the process by which major cases are brought before the courts and decided — are seen as interesting but atheoretical, as journalism not science. Perhaps our theory is out of joint. And perhaps an effort to understand how American theories and research on judicial decision making can inform Canadian research may be instructive both to American judicial studies and to the work of those outside the United States who are continually tugged toward American approaches that promise liberation from traditional legal analysis.

En droit de l'environnement et de l'aménagement du territoire, comme dans l'ensemble du droit public, le droit apparaît comme un système de communication, mais un système univoque: un système de communication formulé en termes de normes, pour assurer la réalisation d'un mode de production et d'échanges économiques et sociaux, un système de communication qui obéit tantôt davantage à certains aux nécessités de l'échange et de la circulation, tantôt davantage à certains impératifs de la reproduction des rapports sociaux, mais qui ne change jamais desens.

Présupposé de l'échange et de la circulation, appareil de reproduction des conditions de la production, appareil idéologique et répressif d'Etat, enjeu et forme du pouvoir, le droit représente un agencement et une représentation du réel. D'une part, il justifie les rapports sociaux et, d'autre part, il tente de les rendre “naturels.” Ainsi le droit devient principe de vie en exprimant la réalité sociale à travers le prisme de l'Etat. Et, en même temps qu'il en concrétise les règles, il en travestit la forme dans un langage et un code abstrait. Une telle représentation a notamment pour objet de légitimer et de valoriser l'ordre social et spatial existant.

Miranda v. Arizona, holding confessions obtained during police interrogation inadmissable unless preceded by a full and specific disclosure of a suspect's rights, is perhaps the best known U.S. Supreme Court decision on due process. The decision was built on the twin pillars of human dignity and free will. The Court determined that the intent of the Fifth Amendment is to protect human dignity, and argued that dignity is jeopardized by state actions whose effect is to diminish free will. Consequently, the Court extended the restrictions on police investigators it had been developing since Bram v. United States. In that decision, the Court ruled that confessions could not “be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.” In Miranda, the Court attached the widest possible meaning to “improper influence,” ruling that interrogation is, in itself, an influence against which suspects must be protected by procedural safeguards. It is instructive to reflect on these issues at a time when similar questions are being raised in Canadian courts under the Charter of Rights and Freedoms.

The relationship between criminal law and morality is one which has always evoked strong feelings. Moreover, the question of whether and how to use criminal law sanctions to curb sexual immorality has been particularly susceptible to both outbursts of moral fervour in the community at large and to the pressure exercised by crusaders and propagandists with moral missions.