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The moral force and capacity for inspiration of both religion and politics alike arise in part from the sense that they authentically map the world as we find it, yielding claims about how it should be. This paper asks what role we might imagine for law in this “hyper-real” world of religion and politics, arguing that law can display distinctive virtues linked to its capacity for strategic agnosticism about the real. Applying Sunstein's idea of “incompletely theorized agreements” to the politics of religious freedom, the paper examines the role of law as a tool of adhesion in two very different constitutional settings—Canada and Israel—and argues for modesty as a functional virtue in law and legal process. Viewed in this way, law draws its worth from its tolerance for ambiguity, its sub-theoretical nature, and its pragmatic proceduralism, seeking to sustain political community in the presence of normative diversity, rather than speaking truth to difference.
Education—and particularly public education—has become a crucible for the relationship between state and religious diversity, a principal site for contemporary debates about the meaning of secularism and the management of religious difference. This is so across a variety of national traditions, and despite wide differences in the historical and “emotional inheritances” surrounding the configuration of law, politics, and religion. Through an exploration of Hannah Arendt’s thought about responsibility and freedom in education, this article works towards a better understanding of why education is such a crucial and fraught field in the modern encounter between religion and law. The article turns to the recent jurisprudence of the Supreme Court of Canada to draw out the implications of these ideas, arriving ultimately at a claim about the nature and limits of the concept of state neutrality.
The three articles offered in this forum on the early history of criminal appeals do us the great service of adding much of interest on this important but neglected issue in the development of Anglo–North American criminal procedure. The opaqueness of the legal history of criminal appeals stands in stark contrast to their centrality and apparent naturalness in contemporary criminal justice systems in England, Canada, and the United States. These three papers look at the period leading up to and immediately following the creation of the first formalized system of what we might call criminal appeals, the establishment of the Court of Crown Cases Reserved (CCCR) in 1848. This key period in the development of the adversary criminal trial was marked by both a concerted political effort to codify and rationalize the criminal law and by profound structural changes in the management of criminal justice.
The purpose of this study was to evaluate Canadian amyotrophic lateral sclerosis (ALS) centres with respect to: 1) the prevalence of Non-invasive positive pressure ventilation (NIPPV) and invasive mechanical ventilation via tracheostomy (TV) utilization, 2) the approach to NIPPV use, focusing upon the currently employed initiation criteria and 3) the barriers influencing NIPPV administration.
A descriptive survey research design aimed to obtain quantitative data and open-ended responses from an active physician at each of the 15 multidisciplinary Canadian ALS centres.
The principal findings of this study were: 1) NIPPV and TV are used in 18.3% and 1.5% of patients at Canadian ALS centres, respectively, 2) symptoms of respiratory insufficiency, namely orthopnea (clinical significance rated at 9.00/10 ± 1.48), dyspnea (8.27 ± 1.95) and morning headache (7.55 ± 1.21) are the most significant indicators for NIPPV initiation, 3) the primary barriers to NIPPV utilization are patient intolerance (70% of centres) and inaccessibility of respirologists and ventilation technologists (50% of centres).
Variability in NIPPV use has an impact upon the management of Canadian ALS patients. The establishment of more definitive NIPPV initiation criteria, emphasizing respiratory symptoms, and the attenuation of barriers to NIPPV use should be targeted so as to ensure optimal care for all ALS patients.
This article presents the argument that our understanding of the nature of the relationship between modern constitutionalism and religious difference has suffered with the success of the story of legal tolerance and multiculturalism. Taking up the Canadian case, in which the conventional narrative of legal multiculturalism has such purchase, this piece asks how the interaction of law and religion - and, in particular, the practices of legal tolerance - would look if we sought in earnest to understand law as a component, rather than a curator, of cultural diversity in modern liberal societies. Understanding the law as itself a cultural form forces us to think about the interaction of law and religion as an instance of cross-cultural encounter. Drawing from theoretical accounts of cross-cultural encounter and philosophical literature about the nature of toleration, and paying close attention to the shape of Canadian constitutional doctrine on religious freedom (law’s rules of cross-cultural engagement), this paper suggests that legal toleration is far less accommodative and far more assimilative than the conventional narrative lets on. Influential alternative theoretical accounts ultimately reproduce this dynamic because they similarly obscure the role of culture on both sides of the encounter of law and religion. Indeed, owing to the particular features of the culture of law’s rule, even the more thickly cultural "solutions" proposed in dialogic theory ultimately fail. In the end, this article exposes the very real cultural limits of legal tolerance.
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.