Citizenship, social rights and social cohesion: A priori, the concept of social cohesion evokes the idea of a body of values, norms, behaviours and expectations that, because they are shared, give meaning to “living together”. This is why, at a time of globalization, neo-liberalism, and economic growth at all costs, implementing strategies designed to promote social cohesion is often presented as the antidote to the ills of society and the prerequisite to development. In the literature and political discourse, the concept of social exclusion is used to describe the reality of many social groups today who feel deprived of security and identity and are convinced that they have lost something they once possessed. The question, then, is one of knowing what the obstacle to social cohesion is. Research efforts, as well as international institutions, have abundant recourse to this logic in order to identify and remedy some of the obstacles they perceive as being the causes of social exclusion. For example, in this respect, inclusion and participation in the labour market is the object of sustained attention; the same applies to the war against poverty. Meanwhile, everything points to social exclusion and its opposite, social cohesion, being phenomena that cannot, for the purpose of analysis, be reduced to questions of material dysfunction in a given society. By the same token, social cohesion cannot be reduced to a matter of integration or a fight to leave the margins of society. This is only part of what we learn from the work of Jane Jenson and Mateo Alalouf, whose earlier efforts have inspired several contributions that follow.

This article considers the relationship between judicial review and democracy through a case analysis of legal rights by the Supreme Court of Canada. Perhaps more accurately, this article seeks to engage an influential group of scholars, the Canadian interpretivists, best illustrated by the scholarly contributions of F.L. Morton, Rainer Knopff and Christopher P. Manfredi. Unlike the Canadian interpretivists, who conclude that judicial activism by the Supreme Court of Canada has undermined liberal constitutionalism, this article suggests that judicial activism has deepened constitutional supremacy. This argument is developed in two parts. In the first section, the theoretical limitations of original understanding are explored, largely as a way to illustrate the conceptual difficulties facing the Canadian interpretivists and their attempt to demonstrate the unconstrained nature of judicial power in Canada. In this section, we contend that the construction of original understanding is a highly subjective enterprise that creates the myth of judicial supremacy. In the second section, the empirical limitations of the claim of judicial supremacy are discussed by identifying the paradox of judicial activism — how judicial activism and its impact varies depending on the state actor at the centre of a Charter challenge. Through a case analysis of legal rights cases decided by the Supreme Court of Canada, this article confronts the myth of judicial supremacy by demonstrating that judicial activism against the police does not advance judicial supremacy but strengthens constitutional supremacy. By redefining the relationship between citizens and the state through an activist legal rights jurisprudence, the Supreme Court of Canada has effectively checked arbitrary uses of state power by the agents of law enforcement. This activism serves to advance constitutional supremacy, despite claims to the contrary by the Canadian interpretivists.

In 75 years of cannabis prohibition in Canada, the latter third have been marked by considerable debate as to the propriety of invoking a criminal response to behaviour that is so prevalent and widely tolerated. The movement for reform of the laws prohibiting simple possession and use of the drug has intensified in recent years. Pragmatic adaptations on the part of Canadian legal institutions, aimed at mitigating the social and personal consequences of enforcing these sanctions, are applied routinely though selectively today. Nonetheless, actual policy reform seems far from inevitable, despite the increasing endorsement of factual evidence and widespread support for decriminalization. Given the legal-political impasse characterizing the cannabis controversy today, this paper examines the grounds on which prohibition may be viably opposed on the basis of respect for human rights. These moral grounds and remaining obstacles to legal reform are developed in view of the key contested arguments in R. v. Clay (1997), a landmark constitutional challenge as to the designation of cannabis as a prohibited substance in Canada.

This article presents first, a summary of the findings of the first phase of the human dignity and social exclusion initiative (HDSE) of the Council of Europe and second, an analysis of the implications for social policy of the four themes identified in the report's conclusions. These four themes are: i) trends in risk, ii) the changing role of the state in relation to risk, iii) convergence in social policy approaches in Europe and iv) the challenge confronting social NGOs in defending the least advantaged in risk society. Thus, the article uses the framework of risk, social exclusion and social rights to explore the implications of social policy trends for the lives of the least advantaged people and to comment on effective strategies for combating poverty and exclusion in the changing environment identified by the HDSE report.

This essay argues for a practice of comparative legal scholarship emerging from the insight of legal pluralists. If everyday life is a normative order (or a constellation of normative orders), it can be compared to other, less transient normative orders. Continuity, discontinuity, shared and divergent characteristics can then be identified. The language and features of one can be used to understand the other. Through cultural translation, “microlegal” and macrolegal systems can become the object of studies in comparative law. The argument proceeds in three steps. In the first part, drawing from the work of Michael Reisman, the conceptual apparatus of official law is enlisted to present the mundane encounter as a space of interaction subject to “legal” ordering. The second part begins from the other end — it points to the uses of everyday life as allegory for fundamental problems of macrolegal ordering, as illustrated in the work of Roderick Macdonald. In the final part, the two strands are brought together in a comparison of the features of microlegal encounters, on the one hand, and large scale contractual relationships described by Jean-Guy Belley, on the other hand. Architectural continuity is manifested in the fact that similar tensions or polarities are part of the structure of normative orders at each layer, from the brief encounter to the formal, institutionalized, and large-scale examples of human interaction.

The Chilean model of privatized pension schemes has expanded in Latin America in the last ten years and has generated much interest at the international level. This raises important questions in relation to the individualization of social risks and the erosion of the human rights underpinnings of social security. This article looks at the characteristics of Latin American privatized pension schemes and explores some of the motivating factors behind the trend toward privatization. The approaches to pension scheme reform advocated by the World Bank and the International Labour Organization are also compared. The legal standards and principles having generally guided the design of pension schemes until now provide insight for an examination of some of the issues surrounding the implementation of privatized pension schemes. Among these issues are the changing role of the State with respect to social protection and the ability of more vulnerable groups to exercise their right to social security.

This paper addresses some of the tensions for social cohesion presented by Canada's medicare system. This system, which constitutes the country's best-loved social program, is broadly governed by the five principles of the Canada Health Act. Independently and together, these principles promote social cohesion. Medicare is however also under threat from various elites, who favour elements of its privatization, and whose principal strategy is here termed privatization by stealth. The argument that privatization is disruptive of social cohesion is advanced in general terms and with specific reference to the case of Ontario's Community Care Access Centres, which broker public funds to non-profit and for-profit home care agencies across the province.

This paper suggests that many of Gurvitch's ideas, which were originally presented in an abstract fashion, are still highly pertinent to socio-legal analysis. They may be employed in empirical research in a revised form, which would make them receptive to operationalisation. To this end, I focus on some of the main theoretical ideas developed by Gurvitch, reinterpreting them critically and in the context of the socio-legal research of the last few decades. Then, I apply them to empirical data collected through the author's personal research experience and some other empirical studies. The question prompting this examination is whether Gurvitch's theoretical insights could enhance our understanding of such data and thus open new avenues of socio-legal enquiry.

Since the beginning of the crisis and the rise of unemployment, the “social economy” has been given a strategic role in the defence of those abandoned by the capitalist economy. The social economy is regarded as an economy that produces social services and is also a tool for the integration of the unemployed. This role is all the more important because the social economy is historically carrier of democratic and social values and forms part of a social tradition dear to the workers' movement: a citizens' initiative, an alternative to the market economy with its injustice and social violence. It seems to us, from our experience in Belgium, that the social economy sector has also served as a Trojan horse for the deregulation of employment, constrained by the mode of subsidy and with the approval of its protagonists. We wonder if the call for the social economy development does not favor the weakening of the public service and the State's gradual withdrawal from public service? Is it an ambition or an adverse effect of the instrumentalisation to which this sector is subject?

Occasionally, courts assume the role of historians and narrate stories of historic significance. The courts are fully aware of their “historical” role when they are called to make decisions about historical facts in a dispute that happens to be relevant to their decision. In contrast, this article centers on the unwitting writing of history by the courts when they describe past events as uncontested historical facts, usually through the doctrine of “judicial notice,” ignoring the fact that their story is not necessarily uncontested. As a test-case, the article focuses on decisions given by the Supreme Court of Israel, especially in the formative period of the State. The article argues that the historical narratives of judges, who are usually part of the mainstream in their societies, represent the nation's accepted version of its collective memory. It then tries to shed light on the importance of this narrative in the context of the court's institutional legitimacy.

Women's citizenship in the Southern Cone is based on a republican conception aimed at the participation to the community and a public responsability reaching from the local to the supranational level, from the public to the political space. Such a process implies a dynamic of individuation, but is also ambiguous because it reproduces the sexual division of labour.

Nationhood can be defined either positively, which will lead to a civic model of citizenship, or negatively, from which an ethnic model of citizenship will ensue. Each approach has a direct, formative effect on a nation's political power and on its national and international relations. The ethnic model of defining First Nations, advanced by colonial governments via legislation and modern-day treaties and adopted by First Nations, diffuses First Nations political power and distorts First Nations national issues by reframing them as primarily social and economic disadvantages. Conversely, an inclusive civic model of nationhood will enable First Nations to rebuild and maintain their political strength and integrity by moving far beyond establishing their boundaries and internal identity on blood and ethnicity. Current-day political and legal discourse on self-government, aboriginal rights and title, and treaties is largely founded on western constructs of nationhood that arise from European history and cultures. First Nations constructs of nationhood remain unarticulated or obscured, or are discarded at the self-government and treaty negotiation tables to the detriment of First Nations. The consequence of this approach is to further entrench Canadian structural power imbalances rather than create positive political, economic, and social change for First Nations. A different approach is necessary. First Nations and western constructs of nationhood and citizenship must be critically examined and compared, and First Nations must begin rebuilding inclusive, viable, civic societies based on nations, not on ineffective Indian Act bands.

This paper examines legal, political, and social processes culminating in the decriminalization of homosexuality in Canada in 1969. While it explores gay activism, international developments, liberalizing social attitudes, and the problem of long-standing anomalies in the Criminal Code, the paper's primary focus is on the re-conceptualization of homosexuality from a legal-criminal paradigm to a medical-scientific one and its impact on eventual decriminalization. In this vein, Foucaultian theory is used to illustrate how advancing psychiatric discourse on homosexuality affected social and legal understandings of same-sex attraction from World War II until the 1970s. As psychiatric and psychological professionals broadened their authority into wider areas of sexual practices and identities, they provided reformers and parliamentarians with an interpretative framework to disassociate homosexuality from criminality. While partially legalized in 1969, homosexuality remained firmly “pathological,” thus entailing a continued, if reconfigured, “governing” presence in some of the nation's bedrooms for years afterwards.

This research note on the use of the Canadian and Quebec Charters of Rights in social matters shows that judicial proceedings have limited success. Even reinforced by the Charters, the concept of social cohesion is powerless when faced with legislative changes that have undermined social law. The paper traces broadly some recent modifications to social programs in Quebec and on the Canadian federal level in order to determine their impact on social law. To do so, we focus on the fiscal treatment of such programs.

In multinational polities, different orders of government are involved in determining the norms of social protection. In this context, this article addresses the question of who does what, how and why. The first section deals with the distribution of normative power concerning social protection in federal states and in the European Union. The second section examines a variety of devices enabling the articulation of shared power. Finally, a third section concentrates on the different functions of normative power in the social domain. The first one is obviously redistributive. Secondly, the exercise of normative power legitimises public institutions of all government levels involved. The third function, which is of particular interest in the context of multinational States (or political spaces such as Europe) consists in the consolidation of citizenship. The solidarity inherent in norms of social protection reflects the sense of belonging to a particular social group, and in this context, the nation. It can also serve to strengthen the sense of belonging to the larger political space, the multinational federation. In complex political structures, the power to establish norms of social protection contributes to the phenomenon of multiple loyalties and overlapping citizenship. Cementing citizenship in such a political context cannot succeed through homogenisation, but must respect the cultural dimension of social protection and the right to be different.

This paper analyses the public discourse regarding consent and sexual violence that emerged in response to the Ewanchuk (“bonnet and crinolines”) case. Analyzing the debate that ensued in the editorial pages of the National Post, I suggest that the strong response to Ewanchuk stems from the way in which participants in the debate interpreted the case through the lens of their own personal - and gendered -experience. The reaction is also the result of a clash between the dominant cultural-sexual script of heterosexual interaction, on the one hand, - a script which celebrates masculine sexual aggression, and the consensual script encoded in Canada's “No Means No” legislation, on the other. Finally, to a public already skeptical of feminism, Ewanchuk symbolized the feminist “take-over” of the Supreme Court. I argue, as well, that the interpretation of consent embraced in the dominant cultural-sexual script represents a considerable departure from the liberal ideal of free and voluntary consent in its reliance on a notion of “inferred” consent and its Hobbesian obfuscation of coercion and consent. Ultimately, Ewanchuk reflects the persistence of so-called common sense attitudes about sexual violence in spite of legal reforms, and it raises questions about whether consent can be defined in terms that would be meaningful and emancipatory for women.