Legal Values: Multiculturalism and Intra-Group Vulnerability

In the last fifty years, we have witnessed a pendulum swing concerning the relationships between the liberal state, the individual, and cultural minorities. The pendulum began to move during the last three decades of the twentieth century, when assimilationist and monocultural nation-state models were contested and increasingly displaced by newer multicultural models. These new models acknowledge the recognition of cultural minority groups as a prerequisite for the ability of their members to equally enjoy their freedoms and rights. But it was not without criticism that this multicultural swing swept the Western developed world. Critical works, which are collectively known as the literature on “minorities within minorities”, have drawn attention to inequalities within cultural minority groups and the way that these groups can oppress their own internal minorities – who might be women, children, LGBTQ+ individuals, members of a lower caste, low-income individuals, and other groups of (less powerful) members. This problem of intra-group vulnerability is the focus of the seminar.
The seminar will bridge legal and theoretical materials to inform our understanding of this problem. Classroom time will focus on critically examining theoretical approaches to addressing intra-group vulnerability concerns, considering their application to actual contexts (to a range of religious, immigrant, and Indigenous communities in Canada and other multicultural societies), and identifying zones of uncertainty and disagreement. Some of the issues that will be discussed include the criminalization of polygamy and forced marriage practices, the protection of children of minority faiths, and bans on wearing Muslim head or face coverings (including the recent debate around Quebec’s Bill 21). These issues will be considered with attention to developments that mark a perceptible retreat from multicultural and diversity-accommodating agendas across the globe – indicating yet another swing in the state-individual-minority relations pendulum.

Legal Values: Property, the Environment, and Equality

Property is at the heart of economic institutions, beliefs about freedom and security, and people’s understanding of their relationship to the Earth. The focus of this course is (1) understanding the role of property law in harm to the environment and in human relations of inequality and (2) exploring alternatives to the norms and legal forms of property.  To do this, we will integrate analysis of political theory, legal theory, legal history, case law, environmental policy, and issues such as housing and homelessness.  This course will explore the connections between property law and beliefs basic to the economic and political systems of common law countries. For example, we will look at how property law expresses and maintains assumptions about human superiority to other life forms, and the links between those beliefs and settler colonialism.  We will (briefly) look at the legal history of property to understand evolving structures of power and inequality, and the role of property law in that evolution. Legal history provides a perspective that allows us to see that beliefs and practices dominant today have not existed from “time immemorial.” This then sets the stage for examining viable alternatives to existing property structures. In exploring those alternatives, we will look to Indigenous law, comparative law, and the potential for existing legal concepts like “trust” to be re-purposed. We will look at issues of human inequality and the ways they are interwoven with environmental harm. Hierarchies among humans and between humans and the Earth (with humans at the top of a pyramid of life forms) are interconnected through property law. Because property is so embedded in institutions and norms, transformation will require a deep rethinking of core beliefs. We will look at some of the resources for re-envisioning property and the values associated with it. In addition to Indigenous teachings (including learning from the land), these include:  the invocation of spiritual traditions, such as Buddhism and Christianity, to promote care for the earth; theories of the role of competition vs cooperation in evolution and contemporary “human nature;” the importance of nature for human health. Specific topics will include: property and settler colonialism; animals as legal beings; learning to care for the earth; the history of exclusion from the land; the importance of “place” in assessing loss of property; the idea of all land held in trust for the earth community, present and future; the power and threat of the myth of absolute rights of property; property, poverty, and homelessness.

Law, Gender, Equality

This course explores the importance of gender as a category that structures identity, opportunity, and hierarchy. Gender intersects with other categories of hierarchy such as race, class, religion, citizenship status, ethnicity, sexual preference and identity, and able-bodiedness.  The course will explore both theories of how intersectionality works, and the role it plays in the particular spheres of law we will focus on. The primary focus of this course is the complex role that law plays in constructing gender (understood in intersectional terms) and in both maintaining and attempting to overcome inequality. The first overarching topic is violence: Sexual Assault on Trial; Law, Gender and Violence: Theoretical and Historical Perspectives; Structural Violence and Indigenous Women. Another very basic way that gender organizes people lives and opportunities is the way gender structures who provides the basic care that all human beings rely on, and how paid work is organized. Thus, the second broad topic is how law intersects with issues of work and care:  gender identity, labour law, international migration, tax law, and the global economy. We will look at issues of : Masculinity,  Care, and the Legal Structuring of Gender Relations; The Intersecting Structure of Work and Care; Care, Work and “Domestic Work”; Restructuring Work and Care; Law and Gender in Global Context. The readings will provide a range of approaches from feminist theory, to legal history, to empirical studies of lawyers and courts, to doctrinal analysis, to proposals for fundamental societal transformation.

Legal Values: Access to Justice

Faced with the reality of an increasingly inaccessible justice system that is failing to meet the needs of the public, access to justice has been described as a crisis by the former Chief Justice of Canada. Given the significance of access to justice as a challenge facing Canadians, it is important to examine the causes as well as the consequences of a failure to provide access to justice from sociological, philosophical, democratic, legal and practical perspectives. By studying the problem, it is hoped that we can begin critically to explore some long-term and meaningful solutions. A recurring consideration will be the role of the lawyer, both individually and collectively, as part of the problem as well as part of the solution. Students will be encouraged to explore a critical approach in order better to understand the scope of the problem, the goals and objectives associated with improving access to justice, and the feasibility of potential solutions. Topics, to be finalized, will include an introduction to current research and thinking on access to justice from a variety of different perspectives.

Legal Values: Equality

In the last decade equality has returned to the centre of academic and popular discussion. Following the 2008-09 global financial crisis, there has been growing concern over the impact of economic inequality both within and between states. In addition, there has been renewed and enhanced interest in the non-directly economic ways that inequality operates in society. In academic writings, in journalistic works, as well as in artistic works, people have explored race, gender and other relations as a cause of persistent inequality.
 
From an academic perspective, the growing interest in questions related to equality and inequality manifested itself in research coming from disciplines that used to have relatively little interest in the topic. In earlier decades works on equality were dominated by political and social theorists (often writers from the outskirts of academia); in the last decade, there has been a wealth of works by economists, political scientists, psychologists, historians, and others that addresses aspects of equality and inequality.

The result is a significant amount of new and often challenging information and ideas. In the seminar we will review and discuss a small sampling of these works. The aim will be to look at questions related to equality from different disciplinary and political perspectives. Among the questions we will consider: Is equality important and why? What is the standard of measuring equality? What are the social causes and effects of inequality?
As the topic is vast, the choice of readings will inevitably be selective. One thing we will not read is Canadian (or other) jurisprudence on equality. However, for their seminar paper students are welcome to take on legal questions and cases, using perspectives discussed in the seminar to analyze them.

Legal Values: Law in the #Me Too Era

Societies tell us a lot about themselves by how they struggle over sex. Over the last four years, the MeToo movement has inspired intense public discussion about cultural, institutional, and legal attitudes and approaches to questions of sexual misconduct, assault, and harassment. We are witnessing nothing short of the revaluation of the kinds of sex that are considered socially and politically valuable. These debates have had, and continue to have, profound legal effects, prompting calls for law reform and policy shifts in jurisdictions all over the world. From sexual assault reform to consent training to on-campus sexual violence adjudication procedures and beyond, we are in a moment of change. This seminar will examine and critically evaluate case studies of specific advocacy and activist projects and their impacts on public and private investments, law reform and adjudication. We will look at how MeToo has shifted how arguments are made in formal court and the court of public opinion. Starting from the position that law and social attitudes mutually influence and constitute one another, we will weigh the costs and benefits of the movement from the perspective of a variety of constituencies, asking throughout how – and to whom – power has been redistributed.

This seminar has been selected as an e-Learning Pilot at the Law School and will be delivered using an entirely remote format. Part of the seminar will pursue an innovative new methodology that will tie together the thematic focus of law reform and MeToo with a research creation process rooted in feminist epistemology. As part of this new approach, students will join actors in the MeToo movement to conduct virtual focus groups to create knowledge together. Using non-hierarchical methods that seek to de-centre discourses and practices of expertise this part of the course will critically engage whether the MeToo movement is advancing its transformational goals.

Law & Religion in Legal, Social, and Political Perspective

Students enrolled in this seminar will engage in a close and critical examination of the complex historical and contemporary interactions between law and religion, two social forces whose relationship has shaped – and continues to shape – our modern world.  This seminar will call upon students to use the study of the interaction of law and religion as a vehicle for gaining (a) a keener appreciation of the challenges of deep cultural diversity, (b) a deeper and more complex sense of the politics of “secularism” in modern secular states, and (c) a richer understanding of the nature of law.  Students will examine certain influential theories in the study of religion and learn about the place of religion in the historical foundations of the common law.  They will trace issues of religious difference through Canadian constitutional history, consider questions of law and religion in international and comparative perspective, and examine the structure and limits of constitutional rights through the study of doctrines of religious freedom.  Seminar readings and discussions will canvass issues such as: the nature of “secularism(s)”; justifications for the constitutional protection of religion; religion, gender, and sexual equality; religion and education; religion and legal pluralism; religion and public reason; and law, religion, and morality.  The seminar will be overtly interdisciplinary, putting questions of history, philosophy, and religious studies alongside legal theory and analysis.

Please note that this seminar has been selected to form part an ongoing eLearning Pilot by the Law School. As a result, class meetings will take place via Zoom. The online delivery of the seminar will enable student engagement with experts in the field from around the world, with students in related courses at other universities, with one another in smaller group tutorials, and/or with online modules designed to enrich learning and class discussion.

Law & Film

Images form an increasingly important vehicle of communication in the digital era, and the legal field is not exempt from these developments.  This course will provide students with tools for critically engaging with the expanding landscape of visual media in public culture, courtrooms and other legal advocacy settings through the study of images on screen.  In addition, through the close consideration of a diverse selection of films, both documentary and fictional, the course will examine of key legal/cultural concepts such as justice, judgment, retribution, memory and reconciliation.  It will assess, analyze and seek to understand the visual and cultural contexts through which the meanings and institutions of law are understood, interpreted and constantly re-negotiated in Canada and in the world.   We will study the contestations of legal power by examining the ways in which lawyers, the legal system, and issues of justice are represented by a variety of filmmakers.   Among other questions, the course will consider whether insights gained from the study of film might help to engender a more responsive and inclusive legal order, within Canada as well as internationally.  Films to be studied will include Black Panther, Unforgiven, Minority Report, and The Man Who Shot Liberty Valance.  
Students will be guided towards the development of critical and generative attitudes to the role and value of the visual in law through the readings, reflective writing exercises, mini-lectures and focused seminar discussion.  Most weeks during the semester, students will be expected to preview a feature length film as well as assigned readings in advance of the seminar. Weekly seminar participation, one class presentation and five short online reflections will make up (40%) of the course grade, while the primary evaluation (60%) will be based on a student’s final essay, on a topic to be determined in consultation with the Professor. This course will satisfy the upper year writing requirement.

Refugee Law

Refugee protection is in a perpetual state of crisis, both domestically and abroad. Many refugee law practitioners and scholars argue that states are retrenching from their duty to provide refugees with the protection to which they are entitled under international law. At the same time, some government actors, media figures and civil society groups contend that existing refugee determination processes are excessively generous and are subject to widespread “abuse” by economically motivated migrants. Still others suggest that refugee protection regimes either distract from or help reinforce a deeper problematic: control over migration that serves to entrench global disparities in income, wealth and security.

This course offers students an opportunity to engage critically with these and other debates over refugee law at the level of theory, policy and practice. This critical engagement will occur through a collaborative examination of refugee law instruments, institutions and jurisprudence in international and domestic forums, with a heavy emphasis on Canada.  

The course will be offered through live lectures and class discussions. The course will also include several weeks of student-led teaching in the second half of the term. There will be two written assignments. This course requires consistent and active student participation throughout the term, including participation in evaluated group work. There is no final exam or final paper. The course, including all evaluated work, will be complete by April 8.

NOTE: If Covid-related restrictions permit live in-person classes on campus, students will have the option of attending in-person or remotely (in which case we will be using technology from the Refugee Law Laboratory to facilitate hybrid in-person / remote learning). If Covid-related restrictions do not permit in-person classes on campus, all classes will be held remotely via Zoom.

Indigenous Peoples and Canadian Law

This course will provide a critical survey of state law as it relates to Indigenous peoples in Canada. Topics will include: the historical context and constitutional framework; Aboriginal rights and title; self-government; treaties and treaty rights; the Indian Act; Inuit rights; Métis rights; and the authority and obligations of the federal and provincial governments.

This course fulfills the prerequisite requirements for the Intensive Program in Aboriginal Lands, Resources and Governments. It is also recommended for students who plan to take an advanced seminar on Indigenous Peoples and the Law.