Law Commons^™

Legal Pluralism And Human Agency, Jeremy Webber

Osgoode Hall Law Journal

Much legal-pluralist scholarship tends to naturalize "the law of the context," treating that law as though it were inherent in social interaction, emerging spontaneously, without conscious human decision. This view overstates the role of agreement in human societies and mischaracterizes the nature of law, including non-state law. All law is concerned with establishing a collective set of norms against a backdrop of normative disagreement, not agreement. It necessarily contains mechanisms for bringing contention to a provisional close, imposing a collective solution. This article presents a theory of legal pluralism that takes human disagreement seriously. The theory retains four themes crucial …

Into The Future: Confirming Our Common Vision, Canadian Forum On Civil Justice

Canadian Forum on Civil Justice

Following Part I of the Into the Future conference in May of this year it was clear that the findings of the 1996 Systems of Civil Justice Task Force Report have been widely accepted, and that many of the recommendations made in that report have been implemented by various Canadian jurisdictions. It was equally clear however that the fundamental problems described in the Report - cost, delay and complexity inhibiting access to justice - have not been resolved, and they remain for virtually all jurisdictions, serious and pressing concerns. This document is written in anticipation of Part II of the …

Fairness At Work: Federal Labour Standards For The 21st Century, H. W. Arthurs

Commissioned Reports, Studies and Public Policy Documents

On October 30, 2006 Commissioner Harry Arthurs delivered his report Fairness at Work: Federal Labour Standards for the 21st Century to the Minister of Labour, the Hon. Jean-Pierre Blackburn.

The Metamorphosis Of Aboriginal Title, Brian Slattery

Brian Slattery

Aboriginal title has undergone a significant transformation from the colonial era to the present day. In colonial times, aboriginal title was governed by Principles of Recognition based on ancient relations between the Crown and Indigenous American peoples. With the passage of time, this historical right has evolved into a generative right, governed by Principles of Reconciliation. As a generative right, aboriginal title exists in a dynamic but latent form, which is capable of partial articulation by the courts but whose full implementation requires agreement between the Indigenous party and the Crown. The courts have the power to recognize the core …

Rethinking Enforcement And Litigation In Ontario Securities Regulation, Mary Condon

Articles & Book Chapters

The Ontario government has recently made changes to provincial securities law that are aimed at more effective enforcement. For example, statutory civil remedies are now available to investors in actions involving misrepresentation or inadequate disclosure in the secondary market. A broader range of sanctioning options has also been made available to the Ontario Securities Commission.

The author explores the factors contributing to these developments, identifies recent controversies surrounding the Commission's enforcement activities, and evaluates the effectiveness of different approaches to enforcement. The author reviews policy issues surrounding enforcement through public, criminal and quasi-criminal sanctions, as well as civil remedies, and …

Human Rights And Transnational Culture: Regulating Gender Violence Through Global Law, Sally Engle Merry

Osgoode Hall Law Journal

In the current era of human rights activism, the global production of human rights approaches to violence against women generates a wide variety of localization processes. Activists translate between global discourses and local contexts and meanings. Culture is conceptualized in quite different and sometimes contradictory ways in this process. Essentialized ideas of culture inhibit recognition of the potential contributions of local cultural practices and provide justifications for groups to resist these changes. This article shows, with reference to a case study of Fiji, that a more anthropological conception of culture provides a better picture of the localization process and foregrounds …

Patchwork Law Reform: Your Idea Is Good In Practice, But It Won't Work In Theory, Roderick A. Macdonald, Hoi Kong

Osgoode Hall Law Journal

This article elaborates a conception of law reform that is pluralistic, interactional, non-formulaic, attentive to implicit normativity and not exclusively instrumental. It argues that law reform practice is always informed by theory. Where theory is inadequate, law reform practice is likely to result in a sub-optimal patchwork. An appropriate theory of law reform will have the following attributes. First, it will have a respect for human agency. This respect is made manifest in law reform on dimensions of form, substance, purpose, authority, mode, regime, sites, and system. Second, an adequate practice of law reform must attend to structural features of …

Flexibilization, Globalization, And Privatization: Three Challenges To Labour Rights In Our Time, Katherine V. W. Stone

Osgoode Hall Law Journal

Three dynamics are coalescing to reshape labour relations in the twenty-first century in the United States: They are flexibilization, globalization, and privatization. Flexibilization refers to the changing work practices by which firms no longer use internal labour markets or implicitly promise employees lifetime job security, but rather seek flexible employment relations that permit them to increase or diminish their workforce, and reassign and redeploy employees with ease. Globalization refers to the increase in cross-border transactions in the production and marketing of goods and services that facilitates firm relocation to low labour cost countries. And privatization refers to the rise of …

Harry Arthurs And The Philosopher's Stone, Peer Zumbansen

Osgoode Hall Law Journal

No abstract provided.

Pluralism, Disagreement, And Globalization: A Comment On Webber's "Legal Pluralism And Human Agency", David Schneiderman

Osgoode Hall Law Journal

No abstract provided.

Legitimating Global Trade Governance: Constitutional And Legal Pluralist Approaches, Ruth Buchanan

Articles & Book Chapters

This article will take up the conversation about legal pluralism in the context of debates over transnational governance, where legal pluralism has of late attracted considerable attention. Legal pluralism has its roots in legal sociology and anthropology, and particularly in the study of the co-existence of non-state, customary law or community norms with formal law. In the transnational context, this original focus is expanded to include the coexistence, within a particular territory, of multiple normative regimes, local, national and international. What is important to note, however, is that in this shift the conceptual orientation of the term remains the same: …

Connecting Economy, Gender, And Citizenship, Mary G. Condon, Lisa C. Philipps

Articles & Book Chapters

This chapter explores emerging discourses of economic citizenship and con- siders how they might illuminate developments in taxation and securities law and policy. In previous work, we have discussed how different fields of business and commercial law help to construct and regulate a gendered and classed economic order (Condon 2000, 2001, 2002; Philipps 1996, 2002, 2003). Here we draw upon theories of citizenship as a possible source of new insights about the formation and governance of an increasingly market- oriented social order and law’s role in that process. First, we focus on the significant theoretical challenges posed by emergent notions …

Regulating Inheritable Genetic Modification Or Policing The Fertile Imagination?: A Feminist Response, Roxanne Mykitiuk, Isabel Karpin

Articles & Book Chapters

The past few years have seen an explosion of legislative activity around developments in genetics and assisted reproduction. In this chapter we examine recently passed legislation in Australia and Canada in the area of genetic modification technologies and reproductive genetics. We demonstrate that legislative control in this area has a twofold purpose. Less controversially it is aimed at providing limits to scientific innovation for the purpose of ensuring safe and ethical research and experimentation. More controversially it is concerned with what should be the proper "nature of reproduction' namely, how it happens (sexually), between whom (a man and a woman, …

Emotions And The Veil Of Voluntarism: The Loss Of Judgment In Canadian Criminal Defences, Benjamin Berger

Articles & Book Chapters

In this perspective piece, the author attacks the notion of "moral involuntariness" in the Supreme Court of Canada's judgment in R. v. Ruzic. He asserts that the voluntarist account of criminal liability is purely descriptive. Through the embrace of a mechanistic understanding of human agency, it forestalls judgment and veils the normative foundation of criminal law. The author asserts the need for a more normative approach, one which seeks to evaluate the moral blameworthiness of an act. In the case of duress, the author suggests that it is not enough to simply state that a person's will is constrained because …

Book Review: Living In A Contaminated World: Community Structures, Environmental Risks And Decision Frameworks, Dayna Scott

Articles & Book Chapters

This is a book review of Living in a Contaminated World: Community Structures, Environmental Risks and Decision Frameworks. Ed. Ellen Omohundro. Surrey, United Kingdom: Ashgate, 2004.

Review Of The New Ontario Limitations Regime: Exposition And Analysis, Lorne Sossin

Articles & Book Chapters

No abstract provided.

Pension Power: Unions, Pension Funds, And Social Investment In Canada, Jinyan Li

Articles & Book Chapters

This is a review of the book Pension Power: Unions, Pension Funds, and Social Investment in Canada.

Privatizing Our Public Civil Justice System, Trevor C. W. Farrow

Articles & Book Chapters

No abstract provided.

A Team Production Theory Of Canadian Corporate Law, Stephanie Ben-Ishai

Articles & Book Chapters

The article applies the Team Production Theory developed by American corporate law scholars, Margaret Blair and Lynn Stout, to argue that Canadian corporate law's understanding of public corporations that are not controlled by a single shareholder or group of shareholders reflects a director primacy norm rather than a shareholder primacy norm. Canadian corporate law provides that directors of such public corporations with widely-held share ownership and voting rights are free from direct control by any corporate stakeholders. A potential departing point for Canadian corporate law, the oppression remedy, continues to develop to deal with extra-legal advantages rooted primarily in unequal …

Poverty, Agency And Resistance In The Future Of International Law: An African Perspective, Obiora Chinedu Okafor

Articles & Book Chapters

This article enquires into the likely posture of future international law with respect to African peoples. It does so by focusing on three of the most important issues that have defined, and are likely to continue to define, international law’s engagement with Africans. These are: the grinding poverty in which most Africans live, the question of agency in their historical search for dignity, and the extent to which these African peoples can effectively resist externally imposed frameworks and measures that have negative effects on their social, economic and political experience. International law’s future posture in these respects is considered through …

The Civilised Self And The Barbaric Other: Imperial Delusions Of Order And The Challenges Of Human Security, Ikechi Mgbeoji

Articles & Book Chapters

In the aftermath of the military conflicts of 1936 - 45, there seemed to be a global renunciation of war as an instrument of state policy. Shortly thereafter, however, decades of ideological attrition between the major powers and the inherent perversion of postcolonial states reduced the solemn declarations of 1945 to ineffectual rhetoric. Underpinning the decline and demise of a human-centred approach to global peace and security is the enduring notion of the civilised self and the barbaric other. The polarisation of humanity between camps of the savage and the civilised has continued to animate international policy making despite denials. …

Law As A Social System, By Niklas Luhmann, Peer Zumbansen

Articles & Book Chapters

No abstract provided.

Who Are "Clients"? (And Why It Matters), Allan C. Hutchinson

Articles & Book Chapters

Although the lawyer-client relationship is fundamental to the lawyer’s ethical and legal role, there has been little close attention paid to defining exactly who “clients” are. This article explores the shifting and multi-dimensional nature of the lawyer-client relationship. Consistent with the aspirational and pragmatic function of law and practice that underlies legal ethics and professional responsibility, the article argues there is no ideal taxonomy for categorizing “clients” and the obligations owed them. The identity of a client is neither fast nor fixed, and lawyers are subject to a spectrum of differing ethical duties and legal obligations that can vary in …

The Metamorphosis Of Aboriginal Title, Brian Slattery

Articles & Book Chapters

Aboriginal title has undergone a significant transformation from the colonial era to the present day. In colonial times, aboriginal title was governed by Principles of Recognition based on ancient relations between the Crown and Indigenous American peoples. With the passage of time, this historical right has evolved into a generative right, governed by Principles of Reconciliation. As a generative right, aboriginal title exists in a dynamic but latent form, which is capable of partial articulation by the courts but whose full implementation requires agreement between the Indigenous party and the Crown. The courts have the power to recognize the core …

Re-Framing The Sharia Arbitration Debate, Trevor C. W. Farrow

Articles & Book Chapters

This article is a response to Mr. McGuinty regarding his response to religious arbitration in the province of Ontario. First, the issue is not about simply prohibiting religious tribunals. Second, it is not only an Ontario issue. Third, it is not necessarily even a Sharia (or religion) issue. This article focuses on these three problems.

Of Takeovers, Foreign Investment And Human Rights: Unpacking The Noranda-Minmetals Conundrum, Aaron A. Dhir

Articles & Book Chapters

In September 2004 Toronto-based Noranda Inc., one of the world's largest producers of nickel and copper, and China Minmetals Corp., a state-owned Chinese company, announced exclusive talks regarding a potential 100 percent buy-out of Noranda. The proposed friendly takeover was expected to be valued at approximately $7.4 billion USD. The dynamic shifted, however, in mid-November when Noranda announced that the exclusivity period for negotiations had expired and would not be renewed. In early March 2005 Noranda expressed frustration at the continuing lengthy process, which was depressing its share value. At the time, Noranda owned 59 percent of leading Canadian nickel …