The relationship between law and popular culture is a complex and multi-faceted one. The essays in this special issue examine this relationship from different angles, and at the same time seek to sharpen our sense of “popular justice.”

The lead article by Alan Hunt traces the attitudes of Europe's governing elites to the culture of the masses from the 1400s on, and shows how law has traditionally been used to “reform” popular culture—or in other words, to contain and neutralize its perceived threat to the established order. Yet popular culture may also contribute to the maintenance of the established order, precisely because of the way it diverts the masses, as Anne Warner La Forest shows in her analysis of the way the film The Piano was received by critics. “Law and order” may also serve as the subject or source of popular culture, as in the case of the American television programme called “Law & Order,” or the numerous reflections of law and lawyers in Canadian television drama discussed by Mary Jane Miller.

Abstract — Examining recent (1990 to 1993) reported Canadian cases on custody and access, I document a movement toward a re-privatisation of “family” to a traditional patriarchal nuclear form. Patterns of privatisation, readily apparent in economic and social policy are also evident within family law. Custody and access determinations in a separation or post-separation setting represent a moment where these implicit tactics become visible; the result is serious limits placed on the freedom and safety of women and their children. Focus on issues of custodial mothers' mobility, wife abuse and allegations of child physical and/or sexual abuse reveals a propensity on the part of the judiciary to prioritise paternal access to children as a criterion of the “best interests of the child.” Like joint legal custody, which the Canadian courts are still reluctant to impose on unwilling parents, de facto joint custody is occurring under sole custody orders. These tendencies ensure the separated or divorced “family” will be “re-onstructed” and re-privatised along familiar patriarchal lines.

This paper builds on the notion that cultural revolution has always been implicated in processes of state formation and is manifest in moral regulation, which produces the normalizing, taken-for-granted reality of deep processes of social change. Two bodies of work are examined—namely, Norbert Elias' historical sociology of the civilizing process, and Peter Burke and the English social historians' concept of the “reform of popular culture”—for the insights they can provide into the part played by law in the formation of the modern state, the modern self, and the practice of everyday life.

The constitutional rights accorded francophone minorities in Canada by Section 23 of the Canadian Charter of Rights and Freedoms in 1982 seem fragile in terms of their recognition and their implementation. In this article, we attempt to understand the reasons underlying this situation. To that end, we analyze the ideological forces behind the interpretation and implementation of constitutional rights relating to the education of francophone minorities from 1867 to 1960. One conclusion arises from this analysis: minority education rights, despite their rational and argumentative character which confers upon them a seeming neutrality, do not lie beyond the sphere of social relations. Thy are a social construct deeply rooted in the ideological oppositions and relations of power which cut through society. In this way, the development, interpretation and implementation of minority education rights by virtue of Section 93 of the Constitutional Act, 1867 have been greatly influenced by the tensions existing between adherents of a homogeneist ideology and those of a dualist ideology. In its very conception, Section 93 is marked by the relations of power which prevailed at the time of Confederation. For their part, the courts entrenched the homogeneist ideology by giving Section 93 a static interpretation, the practical effect of which was to guarantee the wave of homogenisation which struck minority francophone schools prior to the 1960s.

Women's perceptions of abuse differ deeply from official characterizations of them and are largely absent from legal discourse on male domestic abuse despite two decades of reform initiatives. This article traces the enforcement of male domestic dominance and violence through the failures of the criminal justice system to incorporate women's perspectives in systemic responses to male spouse batterers. I argue that it is factors such as official labelling of abuse by the juridical system, including police, which determine whether abuse is ‘officially’ recognized as such and whether the male violent family is stabilized by policies, practices, and non-intervention. This interaction between definitions and institutional responses makes it crucial to understand how women define their own experiences of abuse. The article concludes that male domestic abuse remains a contested area of juridical understandings and practices. Insofar as the ‘official’ definition of her situation impacts on the abused woman's self-perception, and on her access to resources she might use to get out of danger, it determines the organization of ‘domestic abuse’ as well.

The tale presented in the film The Piano is placed in mid-19th-century New Zealand and has been heralded by critics as a timeless love story, and described as erotic and romantic. A legal historical review of this time period, however, demonstrates that, upon marriage, women had very limited property rights and were entirely dependent upon men, whether their fathers, their husbands, or otherwise. In particular, personal objects such as a piano would become the property of the husband upon marriage. Hence, a married woman's access to the ability to express herself in this manner was not her own. The actions of the characters in this film are consistent with the law applicable to this time period. Ultimately, from this persective, the movie is about the abuses of this kind of culture and its inability to suppress the human spirit—the piano being a symbol of exactly that struggle. This paper compares the “modern” perception of this film to its historical context, with the objective of determining what this says about our present society and culture.

Causation analysis is densely political in at least three ways. First, because causation is crucial to our system of attributing moral, legal and political responsibility, causation arguments are advanced for purely instrumental purposes. They do political work. Second, because any particular occurrence is the outcome of an almost infinite number of antecedent events, “but for” causation analysis produces trivial results. A judgement about causal significance is required and will depend, in part, on the goals of the analysis. The choice of goals is political, but unstated goals and hidden assumptions often exclude consideration of some possible causes as significant. These politics of causation need to be made explicit. Third, the institutional setting in which official determinations of causation are made influence the outcome. Hence, it is necessary to explore these as well. Each of these three dimensions of the politics of causation is explored through an analysis of the 1992 Westray mine disaster which killed 29 miners in Nova Scotia, and the official responses to it. It is argued that if the goal is to protect workers and nothing else, then the political-economic context that promotes the creation of hazardous conditions must be considered a significant cause of harmful occurrences. It is unlikely, however, that any of the official responses to the disaster will take this approach.

This paper introduces the idea of the “inflection” of formula to account for the distinctive ways in which lawyers and the law are portrayed in CBC television series ranging from Wojeck to Street Legal. The paper also examines various law-related drama specials and legal docudramas such as Scales of Justice with a view to finding out how the law and legal professionals are perceived in Canadian popular culture. The author concludes with a consideration of some lawyers' reactions to their television image.

After analyzing the characteristics of prison institutions and the traditional role of the law in such a totalitarian legal order, the author attempts to identify the social factors and movements which, since the end of the 1970s, have contributed to the emergence as norms of fundamental rights for prisoners. She posits that recent developments have resulted from the prisoners' rights movement battling before the courts. As the courts developed criteria to judge the legality of practices or decision-making processes, Canadian legislators, in the course of the 1980s, gradually integrated these jurisprudential requirements. Judicial intervention in Canadian prison law has had a significant impact on the development of new norms of prison justice, establishing prisoners' fundamental rights and the duty to treat prisoners fairly.

Making sense of the problems which illiterate people face in gaining access to justice puts the foundations of both the ethnography of law and the modern justice system itself into question. The essay explores this thesis with reference to the case of an elderly dairy farmer whose arrest for the mercy killing of his ailing brother attracted intense local and national attention. Documents from the trial which deal with the construction and use of evidence, confession, and testimony, along with schematic representations of the personal, community, and media responses to the case as depicted in the award-winning documentary Brother's Keeper (1992), render visible the textual conventions of a litigious society along with its non-literate and even ritual cultural context. The most troubling issue raised by the case involves a crisis in the bureaucratic organization and expert professionalization of modern litigation when it attempts to address the rights and competencies of relatively illiterate people who appear unable to articulate the values and beliefs of any cultural community at all.

The use of human and animal subjects in the field of biomedical research is universally accepted. Without such methods, we are told, what would happen to scientific progress and the relief of suffering in the world? Be that as it may, one fact remains: by its very nature, experimenting on human beings and nonhuman animals demands that we protect those who are the subjects of those experiments. In Canada, what kind of protection is offered to human and animal subjects? In the absence of federal legislation, and in place of it, voluntary systems of control have been put in place by the scientific community. These systems are based on the establishment of institutional ethics committees. They are complemented by an a posteriori control of experiments. In this article, the authors describe and analyze these sytems of control. Indeed, although they appear to be reassuring, these systems nonetheless reveal certain weak points.

Neither can he be thought guilty of a greater Crime [than manslaughter], who finding a Man in Bed with his Wife, or being actually struck by him, or pulled by the Nose, or filliped upon the Forehead, immediately kills him.”

It used to be in the United States, that if you came home and found your wife in bed with the postman, it was perfectly okay to get your shotgun and blow the heads off both of them.”

Professors of criminal law like to impress their students with the “unwritten law of adulterous provocation.” It is seldom part of the curriculum; usually, it seems to present itself off-the-cuff, a professorial ploy to keep lectures interesting, a juridical curiosity that the students can regale friends and family with over dinner. In some classrooms, the unwritten law is limited to the southern United States or to Texas. In my case, at a southern Ontario law school, the entire U.S.A. (with the possible exception of Alaska and Hawaii) was implicated.

My teacher probably had heard the same story in a slightly different language from his own professor of introductory criminal law. Rather than gustily losing their heads, perhaps the lovers were “filled full of lead,” or the husband treated his wife to a summary shotgun divorce.

The decision of the House of Lords in R. v. Brown has been well documented as one which has serious repercussions for the civil liberties of homosexuals within the United Kingdom, its most notorious ramification being that one cannot consent to the infliction of injury upon oneself in the course of homosexual sadomasochistic activities. The case continues to arouse strong passions in the gay press and amongst civil liberties groups, and the recent announcement that the European Court of Human Rights is to hear the appeal of the men involved has confirmed that this particular “hard case” will continue to exercise the minds of legal practitioners, academics and others for some years to come.

In addition to its implications for sadomasochistic activities, Brown indirectly raises a myriad of other issues. One of these is the question of to what extent the courts should intervene in the case of injuries inflicted during the course of sporting activities. Although the Crown Courts (where the most serious criminal cases of England and Wales are heard) have recently shown an increased willingness to intervene in cases where the injuries inflicted are particularly severe, my preliminary research suggests that the prosecuting authorities are reluctant to bring such cases to court, although they almost certainly would do so if an incident which gave rise to similar injuries had occurred in a nonsporting context.

Since 1930, the mascot of Robertson'sR Marmalade, England's GolliwogR (who looks like Buckwheat, but a bit more nattily attired) has appeared on over 20 million pieces of merchandise—from teapots to toothbrushes to T-shirts … When Golly was criticized in 1984 by some of England's “oversensitive” black population, a Robertson's spokesman righteously declared, “the Golly forms part of our national tradition and attacking it is an attack on a part of British culture.”

This anecdote attracts both our cultural and legal attention. Capturing the central role of trademarks in national culture, it also points to a politics of ownership and protest. Accounting for its significance theoretically, however, is no easy task. Somehow, it resists easy accommodation in any of the three dominant approaches towards the commodified imagery of late capitalism.

Cultural appropriation involves the unauthorized use of elements of another culture (e.g., voice, practices, image or name) to the appropriator's commercial advantage. Cultural appropriation is experienced by some Native American cultures as an attack on their integrity which jeopardizes their very survival. The case of the Hopi Indians of Arizona is examined. The essay goes on to explore and evaluate various recourses which Native American peoples might employ to check the vulgarization and commercialization of their culture—namely the right to privacy, copyright, and the right of publicity. It is concluded that, to maximize cultural preservation, the right of publicity should be deployed.

Discussions of the relationship between law and political activism have tended to rely on a rigid and unrealistic distinction between legislative and judicial institutional structures. This has led to a failure to consider the structure of professional organizations and the impediments to political activism around legal issues created by the nature of legal expertise. It is argued that the creation of democratic organizational forms, such as those adopted by some community-based legal clinics, holds possibilities for the successful integration of law into the broader political strategies of social groups.