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At the same time that Canadian public law jurisprudence has grappled with some very key cases on bias, a vibrant debate has also raged over the meaning and scope of the notion of impartiality within political and moral philosophy. Spurred by Rawls’ view of liberalism and culminating in deliberative democracy, this debate evolved over a span of more than four decades, yet, rarely, if at all, is this philosophical literature referred to in the public law jurisprudence dealing with impartiality. This paper inquires into whether the debates surrounding impartiality in political and moral philosophy and those in Canadian public law share common ground. In what ways might this literature and jurisprudence speak to one another? The author argues that knowledge of the two debates challenges us to reconsider the judicial methods by which decision-making impartiality is established. This is particularly so in administrative law. The author proposes a theory of grounded impartiality to be used in Canadian administrative law. The theory requires courts and administrative actors to pay close attention to factors such as administrative actor provenance, shared and local understandings, and the possibility for genuine discourse, to allow for more well-informed, meaningful, and transparent decision-making about allegations of bias. While these factors have been advocated by certain political and moral philosophers as an ideal means for assessing an individual’s claim to the good life, a parallel approach has faced ambivalent reception in Canadian administrative law impartiality jurisprudence.
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This chapter provides a historical sketch of the events leading to the Georgia-Russia conflict of 2008, including South Ossetia’s de facto independence and gradual absorption by Russia. It then considers the legal status of South Ossetia under Soviet, Georgian and international law, and analyses the findings of the Independent International Fact-Finding Mission on the Conflict in Georgia. While the chapter concludes that South Ossetia’s right to self-determination does not, at this stage, include a right to secession, it argues that the emphasis now should be on restoring confidence between the parties and addressing humanitarian issues. This is a precondition for genuine negotiations over status within the international law framework on self-determination.
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Many scholars have theorized that judicial review can provide a “friendly hand” to the elected branches by enforcing legislative bargains, taking on politically difficult decisions, clarifying vague or conflicting legislation, and/or buttressing federal power against state actors. Other scholars contend that empowering the judiciary to have an active role in policymaking has undesirable consequences – to these scholars, the judicialization of politics unwisely reframes the policy debate in legal terms, disempowers social movements by removing issues from traditional political contestation, and generates public and political backlash. This paper addresses these claims by examining an area where the courts, through either actively declining jurisdiction or passively acquiescing to executive power, have deliberately abstained from claiming a role in policymaking. We examine the negative space caused by such willful “un-juridification” by looking at American immigration policy.
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English Abstract: Clinical work in law offers important opportunities for students to learn critical, reflective and politicized approaches to legal identity and practice. Such an approach is most meaningful when it is engaged by supervising lawyers and social workers in a clinical placement. The authors of this article, the Academic Clinic Director and Executive Director of two Windsor-based clinic programs, offer context, perspective and examples of how critical pedagogy (influenced by, but distinct from, critical legal studies) provides a roadmap for supervising lawyers and the programs in which they work. The paper briefly sets the context of the authors' teaching and practice. The authors then set out some of the interested parties in clinical legal education, including law schools, communities, students and clients. The paper concludes with ideas on how a clinical program might set out to strengthen critical pedagogy in the supervisory relationship.
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The past decade has seen an upsurge in temporary foreign worker (“guest worker”) programs, which have been described as being “close to slavery” because they indenture the worker to work for a specific employer to maintain their visa status and limit access to permanent residence in the host country. The programs exemplify the dilemma between sovereignty and universalism. States claim to support universal labour rights but maintain absolute sovereignty over the legal status of foreign workers, providing limited, differentiated rights. The paper offers a normative argument, supported by empirical data from Canada, Hong Kong, United States, and Israel, that citizenship status continues to be paramount for accessing even universal (personhood-based) labour rights for these workers.
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