Dans l'appel lancé aux auteurs en vue de ce numéro spécial sur l'exclusion, le comité de direction de la Revue les invitait à examiner non seulement la norme juridique et la jurisprudence sous l'angle de leur pouvoir de mise à l'écart mais aussi les institutions et les normes extra-juridiques; il leur proposait aussi de chercher, dans l'histoire des normes, l'origine des traitements inégaux.

La réponse à cet appel a dépassé notre attente. Si la majorité des auteurs ont centré leur propos sur la norme juridique et ses effets inégalitaires, ils n'en ont pas pour autant négligé les normes sociales et les institutions para- et extrajudiciaires; quelques-un(e)s d'entre eux ont carrément pris pour cibles des institutions sociales et des normes non-juridiques.

Codes of ethics and Codes of deontology are proliferating in various domains. This paper investigates this social phenomenon by analyzing these codes, how they are justified and how they are applied. This analysis shows that two conflicting approaches are at work in this particular form of social regulation. The first approach is grounded in the traditional, legal sanction of human conduct. The second approach, notwithstanding the legal framework present at its inception, assumes that ethical advances are possible through the recogniton and adoption of shared values. Awareness of this tension between the two approaches to the social regulation of occupational activity sheds light on one aspect of modern legal criticism: the dominance of law over all other forms of social regulation.

In our call for papers for this special issue of the Canadian Journal of Law and Society on “Law as a factor of exclusion,” we announced that we were seeking contributions on the discriminatory and exclusionary power of legal and non-legal norms and institutions. We also intimated that the use of historical approaches might prove revealing in analyses of statutes and other legislation, especially for their potential to uncover otherwise hidden legislative agenda.

The articles in this issue of the Journal meet and surpass our expectations. Each of the authors brings into sharp focus the central issues at stake in the announced theme. While the majority of the contributions take legislation and judicial decisions as their primary material, some are directed to exploring non-legal norms and social rules. Moreover, even in those contributions taking the state law as their object, the authors display a keen awareness of the power of social norms and social institutions; one of these deals specifically with the practices of the legal profession and the legal academy. Nearly all of the authors historicize their subject.

In 1670, a royal charter granted by the English monarchy gave the Hudson's Bay Company the exclusive right to rule over an area that encompasses most of what is now the western part of Canada. As part of its original charter, the Hudson's Bay Company was given the power to enact any laws and regulations not repugnant to the laws of England that were deemed necessary to govern its relations with its servants and to maintain social order throughout the vast territory known as Rupertsland. This paper examines the development of the “private” legal system of the Hudson's Bay Company to 1800. Particular attention is given to examining the specific methods of legal ordering and social control that were used within the Company to discipline Company employees. The data examined in the study provide an empirical foundation for broader theorizing about the nature of non-state forms of governance, legal pluralism, and social control. Specifically, the study provides evidence which shows the complex and varied ways in which legal ordering and social control occur outside the state

The Small Claims Court is designed to improve access to justice through a number of procedures, the net effect of which is to enhance the role of the judge as manager of the adjudicative process. The essay reports the results of interviews with 14 Small Claims Court judges in Montreal. Attitudes of judges about their responsibility to ensure a fair hearing, to assist litigants in presenting their cases and to adjust the substance of rules of law and evidence are surveyed. The study also canvasses judicial perceptions and responses to Small Claims Court plaintiffs who may be from ethno-cultural minorities. It concludes that despite their discretion to depart from a strictly adversarial adjudicative posture, judges rarely do so. It also concludes that judges do not see their role as requiring them to take special account of the expectations and understandings of ethno-cultural communities. Informality of proceedings, low filing fees, and the exclusion of lawyers are thought by judges to be a sufficient concession to enhanced access. Transforming the object and processes of civil disputes is not seen as a proper endeavour for the court

This paper examines gender relations within Ontario's Osgoode Hall Law School from the 1920s to the 1960s, focussing on the women who entered the school during this period. It analyzes their backgrounds and motives for entering law school and it also examines their experiences at the school and as articling students. This paper argues that the legal profession's insistence on its masculine nature shaped women law students' attempts to construct their own professional identities and to reconcile their professionalism with their gender, ethnic and racial, and class backgrounds (the majority of these women were Anglo-Celtic and middle-class). Yet while masculinity was the norm for both the profession and the law school, it was not a static, monolithic construct; it was constructed and expressed in a number of ways by male students and instructors at Osgoode Hall, particularly in the pages of the student press and through the activities of O s goode's student organization. Such struggles to define male law students' identities invariably affected women law students; in turn, through the Women's Law Association of Ontario, they worked to create an alternative space where women lawyers and students could work for change and attempt to reconcile professionalism and middle-class femininity.

This paper examines the British legal policy in Hong Kong which preserved Chinese customary law as a subtle and indirect form of social control. The initial takeover of Hong Kong by the British in 1841 was motivated by economic interest in China. Hong Kong was to be developed into an entrepôt under a laissez-faire government. In order to pacify the local subjects and the Chinese government, English law was applied to British subjects but the local Chinese were governed by Chinese customary law. Gradually, the interpretation of customary law by English judges and common law courts transformed and even created a new understanding of this law. The preservation of customary law had the paradoxical effect of ousting the local narrative. One hundred and fifty-six years have passed; Hong Kong has fulfilled the British dream of being a flamboyant commercial centre. However, in less than 150 days, Hong Kong will be elevated from the status of a British colony to that of “special administrative region” of China. Nonetheless, the rhetoric of laissez-faire government continues to be reflected in the policy of “high degree of autonomy.” The fate of Hong Kong is certainly unknown. Hopefully, the study of its past experience will shed some light on its future.

This paper argues for a psychosocial theory of courtroom argumentation. Its central thesis is the deconstruction of the deceptive shifts of courtroom dynamics between the veneer of logical propriety and the emotional prescription buried below. Selected observations on the androcentric bias of the sciences, on linguistic convention as gendered historical ambition, and on alternatives to the dominant logical mode of reasoning and argumentation constitute Part I. Part II critically analyzes selected cases for courtroom alternatives. In an effort to reclaim non-linguistic discourse, Part III synthesizes the emotional mode of argumentation and reasoning with feminist spheres of relevance and reasonableness. The conclusion: that such a synthesis may combine with the rational to present a model for our legal system

This article reports on three studies aimed at identifying ways in which seemingly neutral legislation may lead to discriminatory results. Three facets of workers' compensation legislation in Québec were examined in order to determine whether their application to injured women workers is equitable. The first study analysed 179 appeal decisions regarding claims for psychological disability relating to workplace stress. Results show that accessing compensation was more difficult for women than for men. Disparity in access could not be explained by individual differences. Discrimination operated by differential interpretations by decision makers of broad criteria (unusual stress) developed in the case law itself. The second study looked at legislative and administrative rules regarding compensation for inability to perform unpaid domestic work as a result of a compensable workplace injury. Differential obligations in the home conjugated with inadequate legislative programmes regarding domestic work led to under-compensation of women workers for the real economic consequences of their work injury. Thirdly preliminary results of a study of appeal decisions and policy regarding professional rehabilitation of injured workers are presented. Systemic discrimination is illustrated by the fact that pre-injury earnings are determinant in access to programmes and duration of rehabilitation benefits. Conjugated with systemic undervaluing of women's work, this leads to poorer access to appropriate rehabilitation programmes.

Traditional legal method continues to be one of the most unexplored aspects of the gendered nature of legal discourse. In this paper, I outline a number of problems legal method creates in relation to women's experiences, more specifically the ways in which legal method works, as part of legal discourse, to exclude abused women's stories. Expanding the conceptualization of legal method as a process which includes the more mundane and insidious aspects of the daily practice of law, this paper examines aspects of legal method which are often overlooked in feminist legal theory and research. The paper is intended as a beginning point for future discussion and empirical research and as such suggests the possible depth of the exclusionary practices of legal method and the harm suffered by women as a result. I conclude with a discussion of how women can subvert traditional legal method through the formulation of local solutions based on their own experiences.

In this article the authors examine the phenomenon of creation of “childhood” and the role played by law, particularly by “puttng aside” young people with regard to their legal status. By carefully examining the evolution of Manitoba laws concerning youth between 1870 and 1924, one notices the gradual development of a specific legal space characterized by the necessity of adult control, residential fixation, moralization and interdiction for young people to be in certain public places. Putting this specific legal space Unto place was accomplished actualized by: 1) the development of new legal principles 2) the adoption of new legal designations to situations that require intervention, 3) the implementation of specific administrative structures underlying the application of this new youth legal system, 4) and the creation of a youth police. The impact of this creation is important: the transformation of the representation of youth; transformation of legal relations between children, parents and the State; global modification of the way of life of young people. But furthermore, the construction of “childhood” across the Manitoban legal system shows the transformation of necessities linked to the maintenance of a specific legal order.

Decisions about taxation and government spending have great political significance: they affect the distribution of income and wealth and the nature and degree of class, gender and other social inequalities. However, tax and budgetary issues are frequently constructed as technical matters that can be resolved rationally according to economic, mathematical or other ostensibly neutral principles. The author examines the debate around budget deficits and recent sex equality challenges to the income tax system, and argues that both illustrate how technical discourses tend to deny the normative content of fiscal law and policy and to disqualify political opposition to the prevailing fiscal order as irrational, ideological and inexpert. The paper concludes by examining the discursive strategies of feminists and others interested in fiscal change. The author considers how feminists might respond to, and even harness, the power of technical knowledges in struggling for tax and expenditure reforms while also challenging the oppressive features and depoliticizing tendencies of such discourses.

Surnames tend to be indicators of a particular linguistic or ethnic background. For this reason, many states have sought, directly or indirectly, to influence the language of the surnames of their nationals. In this paper, the author demonstrates how surname policies have tended to reflect certain national identity objectives: to assimilate or to segregate particular ethnic communities, or to engage in national building exercises around a shared ethnic identity. These surname policies are particularly interesting in the context of ethnically diverse countries like the United States and Canada. The author draws on examples from these countries to illustrate how attitudes towards surnames reflect the inclusion or exclusion of particular communities from articulations of a national identity.

In this article, the author examines the problem of representing SM practice and practitioners. In particular the author is critical of the tendency to dismiss SM practitioners' self-representations as inadequate accounts because they are either symptomatic of their perversion or are simply indicators of practioners' internalization of patriarchal values and ideology, suggesting that an adequate analysis of SM can only be rendered by nonpractitioners. In conjunction with an analysis of a British House of Lords decision which upheld the convictions of SM practitioners for assault (R. v. Brown), and several feminist critiques of SM practice, the author attempts to demonstrate that nonpractitioners' representations of SM are themselves inadequate accounts insofar as they generally rely on the deployment of cultural stereotypes of “the sadomasochist,” or reflect cultural biases against ritual practices which involve the use of violence and pain. Proposing these as impediments to “seeing SM differently,” the author constructs a conflicting vision of the aims and form of SM practice and relations.

The Criminal Code contains two articles that deal specifically with hate propaganda. Articles 318 and 319 of the Code are not the result of an arbitrary measure taken by the Canadian legislator: they were enacted on the basis that it was necessary to offer protection to identifiable groups from propagators of hate. Although it is impossible to afford recourse against hate propaganda to all Canadian citizens, the present definition of identifiable groups must be expanded to include within its ambit those who are targeted because of their sexual orientation. This inclusion would signify to society at large that hate propaganda directed against gays and lesbians is unacceptable behavior and it would assure members of the homosexual community that they are full-fledged members of society. If we are to have laws to meet the concerns of special victimized groups, we must ensure that protection is given to all those who need it.

Members of the Chasidic Jewish communities of Montreal lead what appear to be insular lives, sharply defined by physical, cultural and religious boundaries. In describing and questioning the interface between Chasidic and non-Chasidic life and law, the author draws on the theoretical insights of legal pluralism, feminism and what has been labelled “everyday life.” These insights, combined in a critical way, provide the framework and justification for a focus on family relations and education, two crucial aspects of Chasidic experience and identity. Both family relations and education demarcate Chasidic space and communities; they also serve to show how the boundaries are transgressed, blurred, and complicated. Rather than searching for the clearly marked lines that divide Chasidim and non-Chasidim, then, the more fruitful project is one that acknowledges patterns of interaction and constantly changing meanings and practices. It is by recognizing and working with moving boundaries and messy intersections that a picture of life and law—both inside and outside a particular community—can emerge.

The social exclusion of aboriginals is defined as a condition of non-citizenship that results from a rupture between a Nation and its “history”. This break-up process implies that certain individuals and groups have lost access to social, civil and political rights. Historically, the marginalization of aboriginals registered in the cursus of the incorporation to the Nation-State that was translated by an internal policy of reduction and segregation that contributed to the appropriation of lands that were materially and symbolically linked to them. This article intends to understand the role played by law, in such a rupture process, by examining more specifically the effects of the Indians Act. The author conceives that the imposition of law to the First Nations, has been the producer of exclusions by starting and then reinforcing the material and identity break-ups. In conclusion, the author proposes six theoretical principles permitting analysis of the complexity of relations between law and exclusion.

The author begins with an evaluation of the topic of the present issue, “Law as an exclusion factor”, by fleshing out the strong polysemantics of expressions and concluding that relations between law and exclusion are probably ambiguous. To compare the different meanings and to play with the ambiguity generated by their coexistence, is the object of this article which relates to penal law because the suspicion of exclusion takes a large part of it. However, the penal theory presents it, on the contrary, as an effort to tear the humanity out of the archaic game of vindication. On the contrary, relying on recent anthropological works, the author suggests visualizing both the vindictive and penal spheres as two forms of legality equally regulated, of which the most exclusionary is the latter. But since nothing is simple in this game of law and exclusion, the author searchs next to verify the affirmation in examining the contemporary operations of penal law -the creation of incrimination and its application. By demonstrating different scenarios, the author finally achieves the demonstration of the complexity of the relation between law and exclusion and the impossibility of a too brief or a priori conclusion.