Judges of the Supreme Court of Canada are responsible for much of Canada's recent constitutional evolution, whether it be through their interpretation of the division of legislative powers or through that of the new Charter of Rights and Freedoms of 1982. Political science in Québec, however, has traditionally stressed intergovernmental negotiations for the reform of the Canadian Constitution and, until very recently, there were no political analyses of the judges' influence on the legislative power of the National Assembly and on political values in Québec. However, the few persons doing research on judicial power have brought a new perspective to the political role of a high court in a bi-national federal régime. This Québec approach highlights the dependence of the Supreme Court of Canada on the federal government and characterizes its jurisprudence as centralizing and nationalist—in short, the reflection of the political will of Canada's anglophone majority. The Court is no longer perceived as a neutral arbitrator of conflicts. Nevertheless, in Québec, the juridical paradigm continues to pervade political analysis and public discourse.

Les études présentées sous le présent thème, à l'exception des contributions de Kai Nielsen et de Katia Boustany, sont l'oeuvre de membres de l'Équipe de Recherche en Éthique Sociale (ERES), rattachée au département de philosophie de l'UQAM. L'ERES est une équipe multidisciplinaire (philosophie, droit, sociologie…) qui aborde les aspects éthiques des problèmes contemporains dans une approche où l'éthique est perçue comme issue des pratiques sociales et où le savoir des sciences sociales est mis à contribution.

En cette période de remise en question de l'État Providence, les travaux de l'ERES ont d'abord porté sur les théories contemporaines de justice distributive et ce, particulièrement en regard des oeuvres de John Rawls et de Robert Nozick. Cette incursion dans la philosophie politique et morale contemporaine, qui a déjà fait l'objet de publications, nous a conduit à l'élaboration d'un programme de recherche dont l'objectif était d'évaluer la pertinence du discours sur les droits.

In June 1989, the Minister of Justice of Quebec announced the creation of a Groupe de travail sur l'accessibilité à la justice (unofficially, a Task Force on Access to Justice) charged with evaluating the effectiveness of the Quebec Legal Aid Programme and other measures to make justice more accessible to the population at large. The Task Force submitted its Final Report, entitled Jalons pour une plus grande accessibilité à la justice, in September 1991. This essay offers a critical review of the deliberations of the Task Force, including an assessment of how the Task Force initially conceived its mandate, and the processes by which its Final Report was generated. The essay also attempts to situate the recommendations set out in the Final Report within the broader context of North American access to justice theory. Finally, the essay presents various theses about the relationship between legal theory and the outcome of structurally independent deliberative bodies that are subject to the pull of the policy audience.

Legal recognition of new, “third-generation” human rights is often said to devaluate human rights as such. I argue that arguments of this kind 1) are circular, presupposing that legally existing rights are the only legitimate ones, 2) are not without precedent, and indeed pertain to the very practice of modern rights discourse. In conclusion, I hypothesize that the argument expresses a fear of the potential of political democracy.

A critique of moral rights raises an apparently inevitable dilemma: one either affirms the operational nature of these rights, subjecting them to the requirements of positivism, and in so doing subscribes to moral conventionalism, or else one stresses the moral cohesion of a system of rights and focuses on grounding criteria, settling for moral rights devoid of practical effect. Drawing on a model of the operation of legal systems, the article aims to demonstrate that it is possible to reconcile coherentism in the context of the emergence of moral rights with positivism in terms of their conditions of application. The argument postulates an analogy between legal and moral systems as rationally determined social practice, but does not imply that moral rights can be reduced to legal rights.

This paper examines the growth in numbers of lawyers in Canada and British Columbia, and the attrition rates of members from the Law Society of British Columbia. It then reports on the results of a survey of former members of the Law Society of British Columbia which examines the reasons why these former members did not renew their memberships in the Law Society, their perceptions of gender bias in the legal profession in British Columbia, their suggestions for improving the legal profession, and some of the implications of such recommendations.

It is argued that there are no moral or legal rights that may never rightly be overridden no matter what the consequences. There are human rights which are inalienable while still being rightly overrideable in certain circumstances. Even rights-based constructivist accounts of human rights do not provide a grounding for morality that escapes consequentialist critique. But the proper form of consequentialism is a weak form of consequentialism which is distinguished from utilitarian consequentialism.

Women did not gain from the Revolution or the Enlightenment as men did. Seeking the cause for this, the paper concentrates upon the period of 1770–1810, and the area of Central and Western Europe. It is found that during the French Revolution a number of persons, mostly women, did fight on behalf of women's rights to freedom and equality. However, even before the Revolution was over, they had lost what little they had gained earlier. With Napoleon's Civil Code, a modern code in many ways, the time-honoured supremacy of the male was reasserted. In Prussia, a less violent struggle went on about women's rights. It was fought by men on both sides and it was occasioned by the lengthy creative process which resulted in the first of the modern codes by 1796. It reflected a few of the arguments made in favour of women, but in principle it enshrined male supremacy. The Austrian Civil Code extended the recognition of female equality a bit further. Both German codes were influenced by Enlightened theories; however, they were unable to overcome the long-established principle of “natural” male dominance.

The article deals with the issue of the basis of social justice. It notes the inconsistency in the various theories of distributive justice and approaches this from a perspective of the categories of rights which may acknowledge or reject theories of libertarian allegiance and the many egalitarian theories with their notion of the distribution of property. The conflictual nature of these rights stems from their being “declared” rights in particular economic, political and social conjunctures, necessarily expressing particular interests which cannot be reduced to a common ground. The article contrasts this notion of rights, with its accompanying argument demonstrating their sacred, inalienable or natural character, with a notion of “disputed” rights. This notion is articulated through a model drawing from Habermas in which rights are presented as the product of rational consensus. Thus conceived, rights can play a homogenous regulatory role in the creation of property distribution mechanisms.

In Canada, especially since 1970, mediation has become increasingly popular. Authors have mentioned a number of advantages such as the reduction of emotional and financial costs. One can also observe an increasing interest in mediation by looking at texts published on the subject and at the number of centres offering mediation attached to courts. Moreover, some statutes refer to the availability of mediation without, however, regulating it. The particular interest in mediation by the State hides, possibly, a financial concern. Despite its progressive appearance, the intervention of the State in this sector raises some concern. Is the focus essentially the reduction of expenses rather than the fate of the poor? What about the “private’ aspect of mediation, and the agreements concluded thereafter? And the power imbalance between the parties involved? This is why, despite its apparent advantages, it is important to examine the process of mediation from a critical perspective.

I will discuss the process of mediation as well as the role and training of mediators. I will also focus on the concept of custody under the civil law and the common law systems in Canada. The critical and comparative analyses developed will also address the issue of violence. An examination of these issues will demonstrate that formal equality, the current objective of the legal system, is insufficient to address the social reality of substantive inequality. Mediation may provide one of the means of achieving substantive equality.

Discourse on social rights does not take into account the Church's assumption of responsibility for social needs in the feudal era, since this constituted a moral obligation. The article aims at demonstrating that we should seek the basis for current social rights in feudal social institutions. To do so, the author examines religious discourse which led to the institutionalization of social assistance and suggests a perspective on feudal institutions which does not stem from the modern notion of rights.

This paper conducts a feminist analysis of Canadian prostitution control during the period between 1914 and 1970. The major intent of this analysis is to outline the manner in which the prostitution-related vagrancy provisions were enforced from the beginning of the First World War through to their repeal in the early 1970s. The effects of two world wars, the eugenics movement of the 1920s, the Great Depression and the liberalized sexual mores of the 1960s on prostitution control are assessed. Throughout this analysis, it is noted that Canadian prostitution control was characterized by an underlying chauvinist bias which overrode all other factors. Furthermore, it is also noted that feminists generally declined to become involved in the prostitution debate, and that many women's groups and organizations sided with the male-dominated military and criminal justice systems.

A regulatory framework for nuclear technology was created early on at national and international levels. Essentially, it aimed at dealing with the high-risk component of a set of activities. Nuclear regulation, which often derogates from the common law, raises a number of questions pertaining to the relationship between the legal order and the technological order, particularly with respect to the compliance of the regulatory process with contemporary social values (environment and fundamental rights). Moreover, the major role played by scientific experts in elaborating and formulating norms applicable to the nuclear sector may affect the balance of power and the role of public bodies in the exercise of democracy. An analysis and comparison of various national situations through distinct legal practices lead to the conclusion that new patterns should be conceived to regulate the relationship among techno-industry, society and political situations in order to deal with concerns expressed about civilian nuclear activities.

The Depression is usually cited as the reason for the origins of provincial policing in Nova Scotia. This neglects the period preceding the Depression. In particular, the struggle to enforce prohibition between 1921 and 1929 resulted in the centralization of social control in Nova Scotia. Provincial policing became the unintentional public policy success of the prohibition era. A centralized temperance inspectorate formed the foundation of provincial policing. Moreover, between 1930 and 1932, the Nova Scotia Police was established to enforce the Nova Scotia Liquor Control Act which, in turn, generated revenue on behalf of an emerging welfare state. In the final analysis, provincial policing was influenced by middle-class prohibitionists, but it ultimately reflected the interests of state bureaucrats.

Research shows that adhesions to the numbered treaties were of two types: “internal” and “external.” In an internal adhesion, a band living within the previously ceded area agreed to the terms of the treaty, and no new transfer of land was involved. In an external adhesion, a band living outside the previously ceded area agreed to the terms of the treaty, thus adding a previously unceded piece of territory to the treaty area.

This distinction is essential to understanding the long-running Lubicon Lake dispute. From the federal government's point of view, all of northern Alberta was ceded in Treaty Eight; so the Lubicons, who live within this area, are entitled to make only an internal adhesion. In contrast, the Lubicons claim to live on unceded land and thus demand to make an external adhesion. Their claim to possess unextinguished aboriginal title to a specific tract of land is used to justify demands for compensation that would not be paid in the case of an internal adhesion.

Thomas Flanagan's article on adhesion to Indian treaties in this issue of the Canadian Journal of Law and Society is a bold foray into a virtually unexplored area of aboriginal rights. Although adhesions to most of the eleven Numbered Treaties in northern and western Canada were common, as Flanagan points out, not much attention has been paid to them. The matter is nonetheless of major importance for many aboriginal peoples, as was demonstrated by the decision of the Supreme Court of Canada last year that the Teme-Augama Anishnabai had surrendered their aboriginal title by adhesion to the 1850 Robinson-Huron Treaty. There can be little doubt that the issue is going to arise more frequently as other aboriginal peoples challenge the application of treaties to their ancestral lands.