Roderick A. Macdonald

What is a Critical Legal Pluralism

Legal pluralism is a contemporary image of law that has been advanced by sociolegal scholars in response to the dominant monist image of law as derivative of the political state and its progeny. The pluralistic image redirects law and society research toward the myriad normative orders outside the circle of “the Law.” This essay considers the epistemological foundations of both legal pluralism and the legal monist image of law against which its proponents are reacting. It argues that contemporary pluralistic imaginations rest on the same impoverished view of law and its subjects that sustains the traditional claim that law comprises only the processes and institutions emanating from the modern political state. The authors propose an alternative image of law in an effort to redirect the sociolegal studies research agenda. Challenging the traditional social-scientific legal pluralism of reified cultures and communities, the idea of critical legal pluralism presented in this essay rests on the insight that it is knowledge that maintains and creates realities: a critical legal pluralism imagines legal subjects as “law inventing” and not merely “law abiding.” The authors argue that, once the constructive, creative capacities of legal subjects are recognized alongside the plurality of these same subjects, the relationship between laws and selves reveals its complexity. They acknowledge that their approach is only one of many possible critical legal pluralist approaches; but they maintain that any reconception of law within a framework of critical legal pluralism is a form of emancipatory prescription. As definitions of law are revised and rejected, new vistas are opened for sociolegal scholarship.

Still “Law” and Still “Learning”? Quel «droit» et quel «savoir?».

The fact that we are celebrating the 20 th anniversary of the Report of the SSHRC Consultative Group on Research and Education in Law and that the event is cast as a celebration of the Arthurs Report signals two key features of legal research and legal education in Canada today. To begin, it tells us that, at least in certain scholarly circles, the Report has had an impact. That impact can be seen both in the mirror of the past, and in the lens of the present. Looking backwards, the early success of this Association and the founding of its review - the Canadian Journal of Law and Society – attest to the immediate galvanic effect of the Report ; its continuing influence is manifest, notably, in the decision of the SSHRC last year to create a separate adjudication panel for law and society research. Between these salient bookends, one observes that the Report has been called in aid of numerous projects, programmes and initiatives. Let me mention only two (with which I had some prior association) that took on a relatively permanent institutional form: the Law and Society (later Law and the Determinants of Social Order) Programme of the Canadian Institute for Advanced Research that flourished between 1986 and 1996; and the re-establishment in 1997 of a multi-disciplinary federal law reform agency – the Law Commission of Canada – that was charged with pursuing a law and society research mandate.

Canada's third National Policy: The epiphenomenal or the real Constitution?

The idea of the National Policy as both a collective endeavour and a framework for detailed policy analysis is more constitutive of the Canadian state and its governing instruments than is any of its renamed Constitution Acts. National policies originate in the actions and demands of citizens and are often framed by cultural and economic elites before being appropriated by politicians. This essay begins with a descriptive genealogy of Canadas three National Policies (NP1, from the 1840s through the 1930s; NP2, from the 1930s through the 1970s; and NP3, from 1980 onward). In subsequent sections, the essay elaborates the principles and components of Canadas contemporary National Policy, based on the notion of embedded citizen agency. It then explores a set of hypotheses about integrative action in the traditional analytic registers for thinking about the National Policy: economic, communications, and social policy. Canadas third National Policy is an emerging fact reflected in a number of initiatives taken by both Liberal and Conservative governments over the past thirty years. That said, the substantive policy commitments that this third National Policy entails are not fully predetermined but remain open for continuing political decision. Debating those possibilities will shape the country more profoundly than any attempts to perfect Canadas formal institutional arrangements, the epiphenomenal constitution.

Jamais deux sans trois ... Once Reform, Twice Commission, Thrice Law

The decision of the Government of Canada in the fall of 2006 to terminate funding of the Law Commission of Canada was of a piece with the earlier decision of the government of Canada in 1993 to close the former Law Reform Commission of Canada. Unsurprisingly, the creation of the Law Commission of Canada was justified by the same general arguments as those that were invoked when the Law Reform Commission was established. The closure in 1993 occurred after the LRCC had more or less abandoned its original mandate and had taken on a role more in keeping with that typically performed by provincial law reform agencies. That of 2006, by contrast, was undertaken precisely because the LCC did not abandon its statutory mandate. This note explores the conceptions of law, of reform, and of commissions (institutional structure) through which public engagement with, and public participation in reimagining law have been pursued at the federal level. Rather than a lamentation for either the LRCC or the LCC it offers an optimistic assessment of the policy choices that a wise Parliament might well take up in its next iteration of the law reform idea.

Judicial Scripts in the Dramaturgy of the Small Claims Court.

The Small Claims Court is designed to improve access to justice through a number of procedures, the net effect of which is to enhance the role of the judge as manager of the adjudicative process. The essay reports the results of interviews with 14 Small Claims Court judges in Montreal. Attitudes of judges about their responsibility to ensure a fair hearing, to assist litigants in presenting their cases and to adjust the substance of rules of law and evidence are surveyed. The study also canvasses judicial perceptions and responses to Small Claims Court plaintiffs who may be from ethno-cultural minorities. It concludes that despite their discretion to depart from a strictly adversarial adjudicative posture, judges rarely do so. It also concludes that judges do not see their role as requiring them to take special account of the expectations and understandings of ethno-cultural communities. Informality of proceedings, low filing fees, and the exclusion of lawyers are thought by judges to be a sufficient concession to enhanced access. Transforming the object and processes of civil disputes is not seen as a proper endeavour for the court

European Private Law and the Challenge of Plural Legal Subjectivities

This paper argues that the approach to questions of authority, legitimacy, and personal identity characteristic of contemporary European law presents a paradox. The power of the legal project that emerged after the French Revolution lay in its deployment of the notion of abstract legal subjectivity to challenge claimed authority. Much is made of the public law dimensions of this revolutionary moment—the creation of political constitutions establishing national citizenship and human rights standards. But the transposition of abstract legal subjectivity into the private law through national social constitutions like Civil Codes has been far less successful. Abstract legal subjectivity in public law regimes necessarily privileges some personal identities over others in its construction of citizenship. These privileged identities of public law citizenship limit how legal subjects can express their identities in the private law. The paper proposes an alternative, pluralist, theorization of the diverse, iterative character of everyday human interaction that gives content to the idea of legal subjectivity in the private law. It seeks to reconcile a public law of abstract, unitary citizenship with a private law of plural legal subjectivities in a manner that advances the project of democratic constitutionalism.

Implicit Comparative Law

Contemporary comparative law scholarship has been enriched, methodologically and theoretically, by careful, searching accounts of the essence, aims and limits of the comparative legal endeavour. Yet, despite creative contributions to the field, most scholarly analyses remain tethered to conceptions of law demarcated by traditional boundaries - the official, the explicit and the external. In this paper, we contemplate what comparative law would look like if its practitioners abandoned their attachment to state legal positivism and adopted instead an approach grounded in a pluralist hypothesis of law. The alternative that we envision posits individuals rather than agents of official systems as the central legal (and comparative) actors, does not privilege explicit forms of normativity over the equally influential tacit forms that are inherent in all legal orders, and values the comparisons at stake in the everyday actions and interactions of individuals. Ultimately, we offer a response to the question: Whose comparisons, of what law, along which axes, by what method, to what end?

Pluralistic Human Rights? Universal Human Wrongs?

All happy families are happy alike, all unhappy families are unhappy in their own way. So begins Leo Tolstoy’s Anna Karenina. To me this sentence reveals a meta-fact about human beings – except that I believe that Tolstoy got the formula exactly backwards. As meditation on the human condition, Tolstoy’s aphorism (in its inversed form) may be deployed to guide reflection upon “human rights.” The transposition would then be: All happy human rights experiences are happy in their own way, and all unhappy human rights experiences are unhappy alike. This essay poses the following question: What might “legal pluralism theory” have to contribute to our understanding of “human rights”, and in particular, to addressing the contemporary critiques of “universal human rights”. The pluralist hypothesis casts a burden of justification on those who would claim the primacy of their own normative system. This burden changes the way in which the “cultural pluralist” claim is argued. One no longer frames the query as “universal western law” as against “local culture”. The query is rather a query about competing legal orders. In turning our attention to understandings of how human beings interact with diverse representations of legal norms, we may discover that the commitments we hold – or tell ourselves we hold – are imperfect translations of a self we do not know, or want to know.

AUCTIONEERS, FENCE-VIEWERS, POPES – AND JUDGES

It is a measure of the charac ter of late 20th century Canadian society that the judicial function — the appointm ent, remuneration, governance and discipline of judges — has become a “hot-button” issue around which politicians can m arshall electora l argumen t, lobbies can muster public support, and university research centres can sponsor conferenc es. The inten sity of interest and comment appears to be a relatively novel phenomenon for jurists in common law provinces. Not so, however, for those of us from Quebec. The great disputes of the first forty years of this century about the insensitivity of the higher courts (and of the Supreme Court of Canad a in particular) to the civil law tradition are of exactly the same order as those now being raised in Alberta a nd elsew here.