Profound transformations of Western democracies are apparent today. These transformations express an insufficiency in traditional forms of social organisation. The question of governance, of its efficiency, has thus progressively become the major theme of our social debates. Law and social sciences have provided two contradictory responses to meet the need for a new approach to governance: either in terms of efficiency or in terms of procedural ethics. Even if both of these perspectives contain an element of truth, they are no doubt perceived to be intuitively unsatisfactory. It is this intuition of the insufficiency of these two solutions which our hypothesis (contextual proceduralization) aims to construct and to overcome. Our hypothesis states that the two solutions share, beyond their apparent opposition, the same presupposition which explains their parallel insufficiency. This common presupposition concerns their answer to the question of the ‘norm's mode of action’. How should we understand the operation by which society aims to regulate itself and to act upon itself by norms which it considers legitimate?

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.

The Canadian state presents itself as tolerant, anti-colonial and self-critical. Yet, the legal justification for the Crown's acquisition of sovereignty and jurisdiction concerning Indigenous peoples and their lands, relies on the colonial era doctrine of terra nullius which is based on the proposition that Indigenous peoples were sufficiently inferior to enable the Crown to presume that their territories were unoccupied. This paper discusses how the doctrine of terra nullius becomes applied in Canadian law and its limitations as an acceptable proposition at this time in history. It then discusses and evaluates alternatives to that doctrine which have been proposed in various quarters in order to determine the possibilities for the conceptualization and establishment of a political and legal relationship between First Nations and Canada that is post-colonial in its approach and practice.

This article employs recent writings on governmentality to make sense of the ways that labour on the margins of the market and morality are being re-configured in late modernity. By tracing the trajectory of Ottawa strip clubs from 1974 to 2000, the authors demonstrate how the industry and its workers are (re)constituted by shifting discursive contexts, and by economic, legal and social processes. During this time period the restructuring of the labour process from entertainment to service interacted with regulatory strategies including moral contamination arguments, city planning and health management. The authors illustrate how within the normative parameters established by the courts, questions of morality, responsibility and risk get played out. Within this context, and consistent with neo-liberalism, strippers are increasingly constituted as self-regulating moral subjects. On the margins however, her «freedom» is conditioned by a complex web of legal, community, as well as labour discourses and practices.

Over the last few decades the Supreme Court of Canada has been working out what the constitutionalization of Aboriginal rights entails. Early jurisprudence took a rights-based approach to the protection of these rights, affording them a significant degree of protection from legislative infringement. In more recent decisions, however, the Supreme Court has markedly reduced the degree of protection these rights will enjoy. The judiciary has developed a set of general principles concerning the justification of judicial activism, principles ultimately grounded in a vision of Canada as a constitutional democracy and the role of the judiciary in such a democratic structure. This work examines the ways by which the judiciary might attempt to deploy the principles, and the vision on which they depend, in efforts to justify its recent activism in the realm of Aboriginal rights.

This article explores the legal and discursive impact of R. v. Vriend (1998), the Canadian Supreme Court's first unequivocal pro-gay rights ruling. While not questioning Vriend as a victory, it engages in a critical interrogation of the Court's reasoning. Deploying the deconstructive insights of queer theory, the article reveals the role of law in producing the rigidly demarcated category “gay/lesbian” and speculates on its enduring discursive legacy. Through a reliance on fixed sexual identity categories, the liberal legal framing of “sexual orientation” in Vriend works to reinforce normative heterosexuality and to privilege those claims that reflect the legal refraction of anti-homophobic struggles as pleas for minority rights. Arguing that the insights of queer theory/politics can and should be brought into a productive relationship with law, the article concludes with some thoughts on the project of “queering law.”

Categorization plays a key role in legal reasoning but it has been under-theorized, particularly within common law legal systems. In this article, the author uses the Canadian law governing cheques to illustrate two different theories of categorization. The law governing ordinary cheques is relatively certain and the results of its application are mostly predictable. However, when that law is applied to variations on the basic form – to post-dated, certified, and double-dated cheques – the results are wildly unpredictable. The reason for this, the author argues, is the theory of categorization embodied in the governing legislation, the Bills of Exchange Act. That act assumes cheques can be defined by a list of necessary and sufficient conditions. However, such a theory cannot account for consumer and corporate practices. A theory of categorization based upon prototypes is necessary to explain the variations. They are systematic and coherent elaborations of a central model. They are not arbitrary because they are constrained by a prototype, but neither are they predictable. The theory of categorization assumed by the law obscures the complexity and fluidity of even such a seemingly simple category as cheques. A prototype theory of categorization, on the other hand, explains both the structure of the category, accounting for the variations, and the source of the law's indeterminacy.

The debate over the application of the Canadian Charter of Rights and Freedoms to Aboriginal governments remains unresolved. In the author's opinion, insufficient attention has been paid in Canada to the American experience with the application of civil rights guarantees to tribal governments. This experience reveals that for the past forty years American policy-makers and judges have been struggling with this contentious issue, and have attempted to achieve a balance between the protection of individual rights and preservation of tribal sovereignty and traditions. In light of the American experience, the author argues that a simplistic yes or no answer to the Charter's application to Aboriginal governments is inappropriate. In particular, more consideration has to be given to the impact of the Charter on Aboriginal cultures and to the role of Canadian courts in adjudicating disputes that arise within Aboriginal communities.

The administration of the justice system within Native communities went through several transformations in Canada. Under the pressures of First Nations' claims, the model of imposition has left room for others based on adapation of practices, participation, consultation and partial power transfers towards Native communities. Such processes of power transfers within the justice field, which started in the 1990's, are part of a more general movement of communitarisation of the penal system or diversion of some conflicts. They are not specific to native communities and limited by several factors, particularly by the founding premisses of the relations between the State and the First Nations, meaning the principle of incorporation of Native Peoples into the law of the State and the socio-economic conditions of Native communities.

In the early 1990's Canada began a process designed to increase the amount of child support to be paid by non-custodial parents in an effort to reduce child poverty. In 1997, after several years of study and coordination among the federal, provincial and territorial governments, Parliament passed a set of guidelines that linked the level of child support to the income of the non-custodial parent. This paper examines the historical development of the guidelines, and the assumptions that underpin them. The original goals of the guidelines are compared with their apparent and likely results in an attempt to provide a map for future adjustments and policy revision.

Why are First Nations overrepresented in Canadian prisons? The habitual answer is that the Canadian justice system is not adapted to Aboriginal cultures. This has given rise to various measures of adjustment, which have not, however, contributed significantly to halt the constant increase of overrepresentation. The author argues that this predicament is rather due to the lack of credibility that the Canadian justice system has in the eyes of Aboriginal peoples, given its involvement in the dismantling of Aboriginal institutions of social control since the middle of the nineteenth century. For this reason, first of all, one must dissociate oneself from certain founding myths of present-day Canada. Moreover, all must be set in motion to allow Aboriginal peoples to reappropriate their political institutions, including their own ways of administering justice. Make no mistake: it is not a question of returning to the past, but rather of moving ahead towards the future.

It is the thesis of this paper that the legal principles within pre-contact Aboriginal legal orders affecting individual and collective rights can be articulated and extended to apply to current-day sexual orientation and transgender issues in Aboriginal communities. The conceptual framework for the paper is that (1) pre-contact Aboriginal societies generally accepted sexual orientation and transgenderism diversity, (2) a consequence of colonialism has been widespread intolerance of sexual diversity, (3) recent litigation and political action have raised the profile of sexual orientation and transgender issues within Aboriginal societies, and (4) Aboriginal people can draw on pre-contact legal orders and employ a critical pragmatic approach to build non-oppressive self-governing nations. The paper argues further that the conflict between collective and individual rights is essentially a false dichotomy. The challenge is to figure out how Aboriginal legal systems can coexist with the western legal system in a way that maintains the integrity of each culture and that protects the rights of Aboriginal gay men, lesbians, and the transgendered.