Volume 29, Number 1, 1988

EN:

On June 3, 1987, the Prime Minister of Canada and the ten provincial premiers signed the 1987 Constitutional Accord in which they agreed to amend the Canadian Constitution in order to meet the Quebec government's conditions for adherence to the Constitution Act, 1982. The recognition of Canada's linguistic duality and of Quebec as a distinct society were among the constitutional amendments agreed upon. These clauses continue to spark controversy, with some commentators claiming that the terms used in the Accord are too ambiguous, while others argue that their insertion in the Constitution will give rise to politically undesirable results.

The author considers the meaning of these clauses and presents an historical account of the notions of “duality” and “distinct society” by analyzing their essential elements. He argues that if governments have recognized duality in order to protect the official language minorities, the purpose of the clause dealing with the protection and promotion of Quebec's distinct society is to maintain and develop its Francophone character. Where these two objectives conflict, the clause in the Constitutional Accord recognizing Canada's linguistic duality will prevail. The Accord's potential impact on the division of legislative powers and the Canadian Charter of Rights and Freedoms are also examined. In the author's opinion, the division of powers will not be modified; however, the recognition of duality and of Quebec as a distinct society may limit the potentially centralizing effects of the Charter. On the other hand, by relying on the duality clause, the courts will be able — should they so desire — to give the Charter's language guarantees a broader interpretation than they have until now been accorded. The author concludes by considering the possible interplay between the linguistic duality and the distinct society clauses once they are entrenched, and the multiculturalism clause (section 27 of the Charter,).

EN:

Faced with technological advances in the field of food preserving methods, Canadian consumers are concerned and call for legislative action to require food processing industries to clearly indicate "irradiated food" on product labels.

The author questions the constitutionality of such action. After having attempted to define the meaning of the concept "freedom of expression " (Canadian Charter of Rights and Freedoms, Subsection 2.b) to see if it includes commercial speech as well as the right to remain silent, the author sets out to determine whether such measures constitute a "reasonable limit that can be demonstrably justified in a free and democratic society."

EN:

The object of the sociology of law has to date been defined too narrowly. Positive law as conceived by jurists, that is law related to the State in one way or another through the legislator, the courts or the law itself, has generally been recognized as the object of the sociology of law. Sociology of law has therefore remained too much within the legal ideology that dominates not only the legal profession but the overall culture of modern Western societies. It is suggested that the notion of "legal order" should furnish the appropriate object for the sociology of law, provided it is defined broadly enough to cover all the legal orders existing in a given society. This first requires a definition of law not only in terms of norms, rules and principles, but as a living institution that includes all agents and/'or organizations that contribute to produce, interpret and apply the law. And secondly, it requires considering State legal order as just one of all the legal orders that co-exist in a society. It should be sociology's task to identify the numerous non-State legal orders and to analyse the complex set of interrelationships among them and with the State legal order. This broadened pluralistic line of thought follows the leads provided long ago by Max Weber and Santi Romano, which have not to date been paid all the attention they deserve.

EN:

Max Weber's Sociology of Law provides, according to the author, a strong basis for understanding and discussing not only modern natural law but also contemporary human rights law. In the first part of this article, Weber's sociological analysis of natural law is briefly outlined, mainly in relation to the opposition between formal and material rationality of law. In the Weberian perspective, the antinomy between formal and material natural rights plays a key role in understanding the decline of natural law, and partly explains the irresistible rise of a purely positivistic conception of law.

The second part of the study shows how the idea of natural law is in itself inconsistent with Max Weber's epistemological positions. For the author, the Sociology of Law remains closely connected to these positions, which form the basis of the Weberian methodology of (value-free) scientific research.

In conclusion, the author emphasizes the importance of Weberian epistemology for the understanding of natural law and, to a certain extent, of contemporary human rights law. He raises doubts, however, as to whether legal positivism can provide a proper comprehension of recent trends in contemporary human rights law. He then suggests that the positivistic conclusion of the Sociology of Law should be reconsidered in light of the reemergence of value-rationality as a basic principle of democratic legal order.

EN:

The construction industry is a prime area for workplace accidents and as such The Health and Occupational Safety Act devotes an entire chapter to the subject. The objective of suppressing danger at its source has required making the foreman the most important agent for looking after the health and well-being of workers. Based on caselaw, this article focuses on sharpening the notion of the foreman acting in the workplace within the framework of The Health and Occupational Safety Act. Two major aspects are developed : that of the identification of the foreman and his obligations on a construction site.

EN:

Problems related to pollution and other ecological imbalances caused by man frequently exercise indirect influence on entire populations. Traditionally, any Quebec citizen who was concerned about an environmental problem, had no way for presenting his views before a court of law since his interest in the matter was deemed to be insufficient. Presently rules governing interest to act have been made more flexible such that a citizen may in some cases take action in the public interest.

This text determines what interest a Quebec citizen may invoke in environmental law through the analysis of rules of interest applicable to three procedures that may be exercised in cases of environmental damage. These are : judicial review over administrative decisions, the injunction provided within the Environment Quality Act and measures based on the Canada and Quebec charters of rights and freedoms.