Les pays ayant une structure politique fédérale sont souvent confrontés aux revendications de leurs États membres pour obtenir plus d'autonomie politique. Pour répondre à ces revendications, les théoriciens du fédéralisme multinational ont proposé de reconnaître un droit à l'autodétermination interne qu'ils ont pris soin d'encadrer de diverses manières. Bien qu'intéressante, cette proposition pourrait toutefois s'avérer insuffisante pour répondre aux inégalités entre les peuples au sein d'une même fédération. C'est la thèse que nous défendrons dans le présent article. Nous montrerons que le concept d'autodétermination interne défendu par Kymlicka reste indéterminé et ouvre la porte à des interprétations plus exigeantes.

This paper argues that analytical jurisprudence has been insufficiently attentive to three significant puzzles highlighted by the legal pluralist tradition: the existence of commonalities between different types of law, the possibility of a distinction between law and non-law, and the explanatory centrality of the state. I further argue that the resolution of these questions sets the stage for a renewed agenda of analytical jurisprudence and has to be considered in attempts for reconciliation between the academic traditions of analytical jurisprudence and legal pluralism, often called “pluralist jurisprudence.” I also argue that the resolution of these problems affects the empirical, doctrinal, and politico-moral inquiries about legal pluralism.

La relativisation de la souveraineté est à la fois au cœur de la critique du pluralisme juridique et le résultat concret de la globalisation néolibérale. Cet article propose ainsi la notion d’écosystème normatif comme milieu pour la structuration des communautés politiques. Il énonce trois hypothèses concernant la configuration de l’écosystème normatif extractif canadien : 1) des enjeux constitutionnels y sont traités par le biais de relations contractuelles entre entreprises et communautés autochtones; 2) la responsabilité sociale des entreprises y fait office de régime de véridiction; et 3) l’impératif d’efficacité y prend préséance sur les visées téléologiques en présence. Ces hypothèses configurent une gouvernementalité moralisante peu amène aux communautés politiques. Cet article propose donc de renouveler la charge critique du pluralisme juridique en insistant sur l’hétéronomie de la norme comme condition de possibilité de la liberté politique.

Comparison is a very common tool for international lawyers. In fact, international law is built around, and draws upon, constructions necessitating an exercise of comparison. In recent years, however, calls have been made to turn the familiar tool of comparison into a central way to engage with international law. This is the idea of those spearheading the rise of a new field called comparative international law. This article critically examines the promotion of comparison as a central mode of engagement with international law and scrutinizes some of the main features of the comparativist project. It particularly shows that the comparativist project, far from laying bare the plurality of international legal thought and practice, enables a thought-colonizing enterprise. The article ends with some reflective observations on the possibility of limiting colonizing thinking in international legal studies. In doing so, it argues that it must remain possible for international lawyers to engage with alterity in a way that does not unilaterally manufacture the “other,” silence it, and speak on its behalf. This approach is called counter-comparability.

Ashley Smith lived and died at a confluence of legal sanctions and correctional policy, norms, decisions, and indifference. This article approaches her incarceration primarily through a particular articulation of legal pluralism. Martha-Marie Kleinhans and Roderick A. Macdonald argue legal subjects should be understood as creating law in relationship with laws/norms. The Correctional Service of Canada (CSC) treated Smith as an excluded legal subject through practices of isolation, but the correctional norms evolving in relationship with her resultant distress simultaneously indicate CSC treated Smith as if she were effectively a law-producer, capable of changing policy. However, treating her as a source of norm-creation assumes equality/power Smith did not have. The story leading to Smith’s death in custody illustrates two primary themes regarding the production of law/norms. First, the legal subject within a critical legal pluralism should be widened to encompass those who act within/against (and are acted upon by) legal/normative systems characterized by extreme power disparities. Drawing on Martha Fineman’s vulnerability analysis, I argue such legal subjects should be understood/treated as vulnerable, implicating an enlarged role for institutions. Second, I follow the broad dictates of a critical legal pluralism to demonstrate how the reciprocally constitutive (though unequal) relationship between the legal subject and legal/normative orders manifested in Smith’s incarceration and attendant changes to correctional norms.

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.

Contrary to what may be suggested by traditional historiography, the modern labour contract did not appear through spontaneous generation with the Industrial Revolution. To the contrary, premodern legal forms going back to the feudal era lasted throughout the nineteen century and even later, entirely subjecting groups of workers to the employers' absolutism. The path leading to a rationalization of the legal technique embodied in the modern labour contract was indeed highly complex. Philip Lotmar's colossal study on Der Arbeitsvertrag [The Labour Contract] (published in two parts, 1902 and 1908) illustrates that complexity in an exemplary fashion, especially as regards the social facts of law. From a Law and Society viewpoint, this work remains without doubts worth reading today, in particular when one also takes into consideration the comprehensive review of this treatise made by Max Weber in 1902 and later comments by Hugo Sinzheimer, the founder of the European science of labour law and himself a distinguished legal sociologist. In the following study, the author insists upon the relevance of Weber's and Sinzheimer's critiques of Lotmar as regards the relationship of law to economics, the importance of legal pluralism for a proper understanding of labour law, as well as the interaction between jurisprudence and the sociology of law.

As copyright is asked to perform a greater role in governing creative activity, its focus on economic values above all others raises concerns. Interviews conducted by the author with Canadian independent music labels suggest that the law and the norms governing labels’ operations are more diverse and include direct subsidies, or grants, from government and the private sector. These grants perform many of the functions expected from copyright. This study concludes that copyright law is often exotic, peripheral, and even irrelevant to those involved in the spheres of remunerative Canadian sound production considered here. This finding suggests a renewed focus on a Canadian narrative of copyright law that puts it in its place alongside other instruments regulating independent music production.

For the past four years, two instructors and approximately one hundred students have participated in a novel experiment in liberal arts legal education. Legal Inquiry, an upper-year course in the Arts & Science Program at McMaster University, seeks to “demystify legal knowledge for the curious student of the world.” It brings together two kindred yet previously isolated academic traditions: an open-ended inquiry approach to knowledge and a critical pluralist understanding of law.

To explore the compatibility of “law” and “inquiry,” the instructors wanted students to gain confidence and skills in engaging with formal legal sources, apply critical thinking to law, and appreciate informal and everyday law. These objectives were met with surprising success given the brevity of the course. Students achieved a basic understanding of formal law and legal reasoning, generated a vocabulary of what it means to think critically about law, and began to identify the continuity of formal and informal law.

In history of legal ideas of the last generation in Canada, legal pluralism deserves an important place. There is a Quebec genre in the legal literature on pluralism that, for reasons one might well suspect, is less well-known elsewhere. The scholarship of Professor Jean-Guy Belley, one of the leading figures in the field, is deserving of a wider readership among non francophones. A translation on one of his most important papers, published at a critical moment in his personal development as a scholar, is presented here in the hope of introducing his work to new readers.

This article focuses on Jean-Guy Belley's interest in the relationship between law and the economy—an interest illustrated by his major work on the contractual practices of the multinational company Alcan. They lament contemporary economic sociology's lack of interest—until recently—in legal phenomena, which contrasts with the close attention paid by two historic figures in “economic sociology,” Max Weber and John R. Commons, to the relationships between law and economics. The authors argue that to fully grasp the importance of the legal dimension in socio-economic analysis, we must return to the foundational insights of Weber and Commons. However, they particularly stress differences between Weber and Commons as to the unity or heterogeneity of law and the economy, the role of ethics, the search for an all-encompassing approach in the construction of ideal-types, the various forms of constraint that characterize law (whether psychological, economic, or physical), and the distinction between state law and non-state law. The latter element is why the authors, like Belley himself, argue that due consideration for legal plurality should be a central thread in any sociological analysis of the interplay between law and the economy.

In his recent works, Jean-Guy Belley, based on his research on legal pluralism, puts forward a disenchanted diagnosis of late modernity as characterized by the prominence of organizational phenomena and by a new kind of “break between collective and individual consciousness.” This diagnosis merits comparison with other global interpretations of social reality, in particular Niklas Luhmann's systems theory. Such a comparison suggests a possible development of the model that can be derived from Belley's work. It is worth taking into account the differences between organizations, on the one hand, and, on the other hand, functionally differentiated systems such as economy, law, or science. This could enable us to revisit ongoing evolutions with respect to human individuality. The hypothesis is that individuals today act more and more as agents of organizations, and less and less as professionals carrying out functionally differentiated activities, and that they are invited to experience themselves less as individual subjects, than as organization-individuals.

In this article Jean-Guy Belley examines the dichotomy between individuals and organizations, considered explicitly in connection with the development of the idea of legal pluralism. This idea—not the concept, which came later—had appeared in the early twentieth century, thanks to militant jurists who challenged the dominance of formal positivism and had an interest in legal sociology and anthropology. Their approach fitted in with legal realism (broadly understood), but specifically questioned the central role of the state in the production of law. That initial form of legal pluralism fuelled the renewal of legal thinking and fostered the development of the sociology of law, but it did not lastingly challenge the dominant status of positivism among jurists. In contrast, the “new legal pluralism” that has been rapidly growing in the last decades presents itself as new legal orthodoxy: paradoxically, the idea of legal pluralism, which originally illustrated the quest for intellectual emancipation from the formalist straitjacket (perhaps even emancipation of social life vis-à-vis the state), has turned into a new orthodoxy in the second era of modernity. That legal doctrine is clearly in harmony with the impersonal domination of private legal orders (especially of large economic organizations) over contemporary society.

In 1996, the Madagascan state enacted Law 96-025 (the GELOSE Law), which transferred the management of certain renewable natural resources to local populations by means of negotiated contracts. This legal strategy was innovative in many ways, namely by prescribing the use of Dina, a local traditional convention, in management-transfer contracts. By using Dina, the state claimed to reconcile the “legal” with the “legitimate” and to favour a sustainable management of these resources. This article focuses on the conditions of legitimacy of environmental norms in a pluralistic legal context marked by globalization. The use of Dina has not in fact contributed to an increased legitimacy of environmental norms, thanks to significant differences between its use and local regulatory procedures, insufficient governmental coordination in the implementation of Law 96-025, and a lack of resonance of sustainable development.

This article reflects on the lesser-known theoretical effects of the dominance of legal monism by contrasting them with the advantages of an approach open to different forms of legal pluralism, including those prominent in the thought of Jean-Guy Belley. In the context of the growing phenomenon of “cause lawyering,” the authors illustrate how the theme of political engagement in law, present in the practice of advocacy and quietly influential for Belley, benefits from a theoretical outlook emancipated from the monist conventions that in many ways still have an impact on contemporary legal thought and the dominant reflexes of its epistemic community.

This article concerns the second round of consultations on the drafting of the 2002 Immigration and Refugee Protection Regulations. In this context, it explores the nature of the “communication space” within which regulatory authorities and interest groups interact with each other. The authors analyse the extent to which the consultations met their main goal of remedying the lack of democratic legitimacy in the process of drafting the regulations. Both discourse analysis and analysis of the concrete results of the consultations reveal that the “communication space“ is shaped by certain pre-established rules. The authors codify and compare the arguments put forward by interest groups in their proposals for modifications as well as the justifications offered by Citizenship and Immigration Canada. They conclude that issues capable of calling into question the soundness of regulatory interventions, having already been dealt with during the first round of consultations, are seldom raised during the second round. The authors also assert that the relationship between state and non-state actors is complementary and interdependent rather than antagonistic, noting that interventions by interest groups have a real impact on the regulations. Consultation is at the root of plurality of modes of production of law within the legal order of the state. The article highlights the complementary nature of the norms produced by state and other sources of normativity and draws attention to the importance of the cooperation between state and civil society actors.