Robert Leckey

Contextual subjects : family, state and relational theory

Acknowledgments1 IntroductionPART ONE: FAMILY LAW 2 Thick Subjects in the Past 3 Contextual Subjects in the Present 4 Contracting and Disputes within Relational Theory PART TWO: ADMINISTRATIVE LAW 5 Thin Subjects in the Past 6 Contextualism Emerges 7 Administration and Relational Norms 8 ConclusionNotesWorks CitedCasesLegislationIndex

Law Reform, Lesbian Parenting, and the Reflective Claim

The article aims to complicate efforts to make law fit or catch up to social practices. It scrutinizes the ‘reflective claim’ using the case study of recognition of parenting by lesbian couples. Reforms in the United Kingdom’s Human Embryology and Fertilisation Act 2008 and the Canadian province of Quebec’s civil code are compared with empirical work from the social sciences on lesbians’ family practices. The reflective claim rests on problematic ideas about social practices and law. Since law is always blunt and incomplete, choices must be made as to which practices it should aim to recognize. Furthermore, the impact of heterosexist and homophobic conditions on lesbian families means that observable practices may not be a suitable model for gay-affirmative reforms. As advanced in the literature, the reflective claim overlooks law and society’s complex interaction, including how reform will not merely reflect but also alter practices. It fails to do justice to law reform’s normative character, obscuring its costs and positive potential.

Cohabitation and Comparative Method

The paper intervenes in current policy debates on unmarried cohabitation and comparative law debates on methodology. It adopts a culturally alert, discursive methodology of comparison to study regulation of unmarried cohabitation under the common law and civil law as well as the effect of an entrenched right to equality protecting against marital status discrimination. It identifies not different legislative solutions to a common problem, but distinct discourses of family law regulation. Yet the approaches are less radically opposed than is often thought. Discursive comparison tends to highlight dominant voices at the expense of minority ones, wrongly characterising minority views as foreign to a tradition. Discursive comparison should not confine itself to a synchronic view of present legal debates; a richer diachronic approach will also attend to views within a legal traditions past.

Must Equal Mean Identical? Same-Sex Couples and Marriage

This paper pushes against the successful rhetoric of formal equality by which same-sex couples are the same as different-sex couples and opening existing regimes of marriage to them best recognizes their equal moral worth. Drawing on social-science research that indicates differences in the economic organization of same-sex couples, the paper explores the possibility that a different marriage regime for the spouses’ reciprocal duties might combine recognition of their equal moral worth with sensitivity to their needs. The study sharpens the understanding of contemporary investments in marriage law for everyone and offers a better justification for formal equality: same-sex couples may be treated identically to different-sex couples not because they are the same, but despite their differences.

Cohabitation's Boundaries and the Confines of Tradition

In contrast with prescriptions for law reform for unmarried cohabitants, this article studies legislative inertia on the subject. It compares France and the Canadian province of Quebec, drawing on theoretical treatment of boundaries from critical geography, queer theory, and sociolegal work on law reform. Abstinence from legislating for cohabitants has not secured legal stasis. Informally and indirectly, ad hoc responses to cohabitation have amended the boundaries of marriage and fundamental legal categories. A conservative approach to marriage and cohabitation has failed to conserve marriage. We identify a gap, not between law and social life but between law and its prevailing justification, that cohabitants are free to choose to marry or to conclude contracts. Legislative and judicial developments show that this justification fails to persuade. Finally, we read France and Quebec’s approach to cohabitation as symptomatic of an impoverished misreading of the civil law tradition.

Contracting Claims and Family Law Feuds

The paper adopts relational theory, a strand of feminist political philosophy, in order to read recent debates in family law about the place of contract in the spousal context. It argues that the literature wrongly reads the Supreme Court of Canadas leading cases in Miglin v. Miglin and Hartshorne v. Hartshorne as exemplifying a stark opposition between ones favoring enforcement of spousal agreements and ones opposing it. The paper argues that the divided judgments in those cases show the judges to be much closer than is usually supposed, finding common ground in what might be called a contextual method informed by relational theory. The paper argues, then, against the reductive habit of reading family law through a Manichaean feminist perspective. The potential and perils of private ordering are, viewed from a feminist perspective, more complicated than is often acknowledged by feminist family law scholars.

Territoriality in Canadian Administrative Law

This review essay challenges the supposition that its origin in English common law assures the unified character of Canadian administrative law. Contrary to the usual suppositions, differences of language - French and English - and legal tradition - common law and civil law - generate distinct cultures of administrative law. Scholars have, however, given little consideration to the extent to which linguistic, political, and other differences have produced distinct, coexisting bodies of administrative law in Canada. Since the political and cultural boundaries of Canadian administrative law appear permanent, the precondition to benefiting from the possibilities for fruitful cross-fertilization is surely greater recognition of the lines that do persist, in law and in fact.

Review of Comparative Law

This article reviews the field of comparative law, which includes many varieties, from the vantage of sociolegal studies. Debates among comparatists appear sharp, even combative. In an effort to quell doubts and to establish their field’s distinctiveness, a number of comparatists essentially urge their fellows to abandon some varieties of comparative law and to unite around particular approaches. Such dogmatism is startling in a field purportedly founded on an interest in pluralism and difference. By contrast, this article’s animating view is that ambitions to impose a single approach or to ‘win’ methodological ‘debates’ are misguided. Comparative law’s eclecticism is unavoidable – perhaps happily so. As Fletcher (1998: 691) observes, however, not all writing about foreign law is ‘theoretical or interesting’. This article contends that within comparative law’s eclecticism, the richest insights and greatest potential for sociolegal scholars arise from the field’s kinship with other stripes of critical legal scholarship and with cognate disciplines. These insights emerge from discussions of method and from varieties that prioritize understanding law in relation to its surrounding society and understanding law generally. A caveat before proceeding. Comparative journals, handbooks, collections and Festschrifts abound and scholars have repeatedly mapped the field. It would be rash, then, to aim for exhaustiveness. To foreground a glaring incompleteness, this review focuses on literature published in English. The goal is not to translate for the reader data from exotic, faraway lands – or from nearer French-speaking jurisdictions. While space constraints imposed painful exclusions, a handful of authors appear more than once, giving a sense of scholarly conversations. The hope is that this survey, despite its limitations, will prove instructive and perhaps provocative, primarily to sociolegal readers and secondarily to comparatists.

Remedial Practice beyond Constitutional Text

This article advances the comparative constitutional literature by examining the exercise of remedial discretion in rights litigation. It compares how the Supreme Court of Canada and the Constitutional Court of South Africa remedy unconstitutional legislation under their respective, relatively new, bills of rights. It uses an internal legal approach and, rejecting universalism and convergence, it pays attention to difference in constitutional texts. By reporting remedial practices and studying the written and unwritten factors that judges identify as conditioning their remedial determinations, the article studies the significant gap between authoritative text and practice. In a warning for those who draft a bills of rights, who rely on its text to forecast judicial practice, or who simply aim to delineate and understand the exercise of judicial power under a bill of rights, judges’ discussion reveals that the scope of action they perceive as legitimate may differ from what the rights instrument’s text implies. This gap has implications for efforts to classify forms of judicial review as strong-form or weak-form, as it may reduce the effective distance between different models as they appear on paper. The article identifies shifting and contradictory views about reading-in versus invalidating legislation, and about immediate versus delayed orders. Based on its comparison of judicial remedial practice, the article flags the unavoidable uncertainty of applying a bill of rights to legislation. It interprets the practice of the two countries’ highest courts as embodying a preference for a judicial posture of legislative engagement over one of constitutional enforcement. This conception of the judicial role emerges from similarities in practice, despite differences in the authorizing constitutional texts. The article establishes a firm basis for normative evaluation of the legitimacy of judicial remedial discretion with a view to engaging the democratic branches of government.

Language and Judgment's Reach: Reflecting on Limits on Rights

This is a review essay on The Limitation of Charter Rights: Critical Essays on R. v. Oakes (Luc Tremblay and Gregoire Webber eds., 2009), a collection celebrating the 20th anniversary of the Supreme Court of Canadas leading judgment on proportionality and limits on rights guaranteed by the Canadian Charter of Rights and Freedoms. The essay reflects on language in Canadian constitutional law, both the importance of the words used in talk about rights and the challenges of bilingualism. Sustaining scholarly reflection and dialogue in English and French, based on the equally authentic English and French versions of constitutional sources, remains difficult. The essay also reflects on the disjuncture between the legislative judgment in Oakes - the Court set out, prospectively, a test of general application for constitutional proportionality analysis - and the traditional conception of the judges role in the common law tradition. Fidelity to that tradition would have inclined the judges, more modestly, to allow rules to emerge from the resolution of concrete disputes over time. Peculiarly, the question as to how judges, formed in the common law tradition, might interpret and apply a written constitution seems not to figure among the concerns of those who declare themselves the standard bearers of the so-called common law constitution.