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

Many types of vital research require protection of communication and information provided confidentially by research participants. In Canada, apart from information collected under the Statistics Act, the only option is a common law balancing test that creates uncertainty insofar as law is made after the fact. This paper explores the option of statute-based protection from the outset. It examines two such protections that have been in place in the United States for decades—revealing their strengths and weaknesses and how they may be applied in the Canadian context.

On the basis of a review of research on prostitution and prostitution in law enforcement in Canada, Brannigan and Fleischman have argued that prostitution is as mainly adult occupation motivated by financial gain, not “pathological work undertaken by the emotionally damaged and the young.” In this paper, an alternative interpretation suggests, among other things, that: 1) although the majority of Canadian street prostitutes are adult, most of them began their careers as youths; 2) a much larger proportion of street prostitutes report childhood “sexual” and other “abuse” than do non-prostitutes; and 3) the “choice” to prostitute ought to be understood in terms of the social-structures which circumscribe that choice.

Threats of radicalization have become dominant tropes for Western security agencies. This article examines efforts to address radicalization in the penal setting. Examining the prison counter-radicalization project directed by the secretive G8 Roma-Lyon Group, the article details Canadian participation on the basis of wanting to acquire counter-radicalization best practices from abroad. Contributing to criminal justice policy transfer studies, the article highlights disjunctures between reforms programs driven by powerful actors and particular contexts where these prescribed policy reforms take shape. Characterizing the Roma-Lyon Group as a venue for norm-makers such as the United States and the United Kingdom, and Canada as a norm-taker, the article traces the transfer of counter-radicalization practices from the transnational to the national level. Underlining how the replication of counter-radicalization policies fits into trends of precautionary risk and governing through insecurity, the article concludes by highlighting what the transfer of prisoner radicalization policy means for future socio-legal research.

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.

This study examines the ways in which unofficial cooperative practices hamper the effectiveness of official cooperative legislation as an expression of informal norms within mining cooperatives in South Kivu, in Eastern Democratic Republic of Congo. The study is based on interviews and the observation of the practices of small-scale miners when setting up and running their mining cooperatives. The study of the normative organisation of mining cooperatives can contribute to reflection on a participative reform of public policies in order to improve governance in the mining sector in the DRC.

Since the 1960s, public consultation has emerged as an important democratic tool, allowing governments to inform, debate, and learn from the general public. Since the 1980s, international trade agreements have wielded significant influence over domestic law making, as an ever more ‘comprehensive’ set of topics is regulated via treaty. In Canada, these two trends have yet to meet. Neither the public nor Parliament is involved in trade policy making, raising concerns about the democratic legitimacy of expansive trade agreements. Through the lens of the recent Canada and European Union (EU) Comprehensive Economic and Trade Agreement (CETA), this article examines whether trade law’s consultation practices can be aligned with those of other federal government departments. We identify five key values that make consultations successful—diversity, education, commitment, accountability, and transparency—and consider the viability of their inclusion in trade consultations.

The topic of legal pluralism has puzzled the sociology of law since its origins. To quote an early example, the aim of Eugen Ehrlich was to grasp the “colourful diversity of living law.” Max Weber, too, made a distinction between law beyond the state, on the one hand, and state law, on the other, the latter being the formal object of normative legal science. The concept of legal pluralism, later formulated in order to capture this diversity, gave rise, as is well known, to a specific line of inquiry in the domain of law and society; it has found concrete expression particularly in the Journal of Legal Pluralism, published under this title since 1981, and has triggered energetic debates. Jean-Guy Belley has made a crucial contribution to these debates, in particular by writing the entry on “pluralisme juridique” for the Dictionnaire encyclopédique de théorie et de sociologie du droit, published 1988. Years before, he had begun an ambitious research undertaking centred on legal pluralism as a fundamental paradigm for jurisprudence, first with a doctoral dissertation under the supervision of Jean Carbonnier and later as a professor in contract law and sociology of law at McGill University. This scholarly relationship to legal pluralism developed first in the domain of sociology of law, through a comprehensive approach that culminated in 1998 with the publication of Le contrat entre droit, économie et société.

This paper describes the 1912–13 case of R. v. St. Clair, which concerned a Congregationalist minister's attempt to regulate the goings-on in a notorious burlesque theatre in Toronto. A “clean stage” was a goal of the moral reform movement of the time, and the criminal justice system was one of the avenues reformers took to attempt to achieve it. However, obscenity and indecency in theatres posed unique challenges. Two of the most important reasons were that under the influence of artistic and philosophical trends in the modern world, obscenity and indecency were becoming unstable concepts, and the nature, purpose and possibilities of art were being contested. The St. Clair case shows Toronto's legal apparatus grappling with these concerns at a time when the authority to judge and to decide what others might and might not view was slipping away from the Protestant churches and toward secular parties, including the courts. Ultimately the case suggests why the difficulties with censorship of verbal and visual representations may be an intractable dimension of our artistic, philosophical and legal position even now.

In 1976 Nils Christie gave a lecture at the University of Sheffield and suggested that conflicts in society performed certain positive functions. Conflicts are “property,” he argued, and belong to the people involved. The participants in conflict may wish to see them resolved in ways that satisfy them, but sometimes those conflicts are taken away and become the property of courts, judges, lawyers or social workers. Christie contends that conflicts make an important contribution to society, and that highly industrialized societies have too little rather than too much internal conflict. He feels that we must organize social systems so that conflicts are nurtured and made visible. In particular we must see to it that professionals do not monopolize the handling of conflicts. In our criminal justice systems, the victims of crime have in particular lost their rights to participate in conflict resolution.

In this paper we use Christie's concept of “stealing conflicts” as a tool for analysing the consequences of the increased use of lawyers in the juvenile justice system as a result of the Young Offenders Act. The Act purports to enhance juveniles' responsibility and accountability for their actions, but this end is undermined to the extent that lawyers steal the conflicts. Furthermore, we argue that this trend toward legalism, which characterizes North America today, is different from patterns in some European countries such as France.

Courts conceptualize and construct the phenomenon of consumer rights violations against older people in different ways. This qualitative analysis of court decisions explores the meanings that Israeli courts have attributed to the fact that the victim was an older consumer. Specific objectives include determining whether existing consumer protections for older consumers are effective, how the relevant provisions of consumer protection law are expressed in application of case law, and how courts structure the issue in their rulings. Analysis has revealed a tension between two judicial approaches: assumption of older consumers as inherently vulnerable and meriting special-class protection, versus application of general consumer protection law attending to actual plaintiffs’ or defendants’ characteristics. Critical reading of the judgments leads to construction and suggestion of a tiered approach to adjudicating consumer protection cases that protects the vulnerable older consumer without falling into a trap of unwarranted ageism.

The texts discussed illustrate general methodological and pedagogical problems faced by the social sciences. Because of their illustrative nature each of these texts makes a significant contribution to our understanding of how it is that social scientists conceive of and deploy ‘race’ as an analytic category and how this impacts on the production of knowledge about crime control and social justice. In this way, the texts are telling in terms of how analytic categories, more generally, are treated in teaching and research. Through a comparative approach this essay takes three recent texts as a vehicle to argue that the consideration of epistemological issues stemming from the employment of central analytic categories cannot be avoided and that attempts to do so yield a passive rather than active engagement with the object of analysis. Moreover, passive approaches do not serve to represent a critically engaged, social scientific enquiry.

This paper argues that lower courts have used their discretionary powers provided within legislation and St-Cloud to infuse a predominantly retributive interpretation into the public confidence in the administration of justice ground of pre-trial detention. This is illustrated notably by their choice of and weight afforded to the various aggravating and mitigating factors, the circumstances that relate to the commission of the offence, as well as their analysis of the length of imprisonment. This transfer of sentencing rationales, and to a greater extent, retributivism, into the third ground of pre-trial detention is used, in part, to justify pre-trial detention and can partially explain the rates of pre-trial detention. Finally, the underlying sentencing logic within the bail process can be understood within a sociological perspective, which examines the wider social functions of institutions and suggests that the bail process is an extension of punishment that serves to reinstate social order and public confidence.

Canada’s National Housing Strategy (NHS) commits the government to eliminating chronic homelessness and promises that realizing the right to housing is a key objective. In this article, we explore how the Canadian government could realize the right to housing in the context of eliminating chronic homelessness. We argue that it is helpful to look at how other jurisdictions have successfully reduced homelessness. In this article we examine Finland and Scotland’s approaches because they offer certain similarities in how homelessness is addressed, yet they also differ, most crucially in how they understand the right to housing. We argue that both of these jurisdictions offer important lessons for Canada to draw on as it seeks to reduce long-term homelessness.