The purpose of this paper is to report on a study of the reputations of provincial human rights commissions in Canada among interested community organizations, women's groups, and minority groups. The focus of the study was on the reputations of commissions for effectiveness, responsiveness, and fairness in handling human rights complaints and implementing programmes against discrimination. The study was designed to test for an hypothesized relation between levels of public funding of commissions and their reputations in the above areas. It was anticipated that the lower the commission's funding the poorer the commission's reputation. Results of the study show that while commissions have generally poor reputations among community organizations, their low ratings are not related to levels of funding. The suggestion made is that poor reputations may be related to other factors such as high community expectations of rights delivery in an increasingly rights-conscious political culture and the structure of human rights procedure.

Malgré toutes les concessions que je serais disposé à faire au préjugé monogamique, je n'admettrai jamais que l'on parle d'une égalité de droits en amour chez l'homme et la femme, cela n'existe pas. […] [I] I appartient aux conditions de l'amour chez les deux sexes que l'un ne présuppose pas chez l'autre le même sentiment, la même notion d' «amour» (Nietzsche, Le Gai Savoir).

This paper outlines the work feminists have done to debunk the effects of the power of the “male gaze”, first upon the construction of their sexual identity and second on the repercussions of the male definition of their women's selves on their treatment in the courts of law. The reader is exposed to two very different feminist perspectives on sexuality and law; one—the radical materialist position, better known than the other—the postmodern and deconstructivist. The author positions herself within the second orientation. She demonstrates the mythical and mystifying character of the male power and ends the second part, on feminism and the law, on a suggestion that has to do with the practice of ethical asymetry but always accompanied by phenomenological symetry in the treament of “others” and “different ones” in the justice system.

Given the visibility and obvious importance of judicial power in the age of the Charter, it is important to develop the conceptual vocabulary for desribing and assessing this power. One such concept that has been applied to the study of appeal courts in the United States and Great Britain is “party capability”, a theory which suggests that different types of litigant will enjoy different levels of success as both appellant and respondent. Using a data base derived from the reported decisions of the provincial courts of appeal for the second and seventh year of each decade since the 1920s, this article applies party capability theory to the performance of the highest courts of the ten provinces; comparisons are attempted across regions and across time periods, as well as with the findings of similar studies of American and British courts.

This paper explores current thinking on the meanings of sex, gender and sexuality and on the relationship between each of these concepts. It suggests that whilst feminist theory has adopted a social constructionist view of gender and, to a lesser extent, sexuality, it has left sex to the conceptual domain of biology. It has also prioritised gender over sexuality conceptually. These issues are explored in the specific area of sexuality and law where it is argued that recent theoretical developments on sex and sexuality within poststructuralist thought have, as yet, failed to influence the dominant understanding of heterosexual relations. Arguably in the field of law and sexuality, feminism has remained wedded to a notion of binary sex and identity politics. The paper then works through two specific instances, namely rape and S/M sexual practice, to identify some of the problems associated with the latter approach. Ultimately it raises questions about whether a poststructuralist politics imbued with feminist ethics might provide us with less essentialist models of masculine/male and feminine/female sexuality without either abandoning feminist political action or falling into a new sexual conservatism.

This paper presents an analysis of attitudes among independent business operators (getihu) in Shanghai toward basic tenets of legal reform in the People's Republic of China. Based on a survey questionnaire administered during the summer of 1993 with the assistance of the Law Institute of the Shanghai Academy of Social Sciences, this paper suggests that the getihu are generally receptive to official norms about equality, justice, and private law relations. Despite having doubts about the efficacy of these norms, the getihu seem motivated by factors of disenfranchisement to accept them as useful in their struggle to get ahead. This suggests that the linkage between legal reform and economic development in China is not automatic, but will depend on the particular conditions of legal and economic actors. This has implications generally for the importance of local conditions in causal links between forms of private law and economic development.

In this paper, recent feminist analyses of the feminization of poverty thesis and proposals for a particular kind of child custody determination—the primary caregiver presumption—will be examined. The question of women's subordination in the context of child custody outcomes is of fundamental importance to the issue of financial support for raising children, and women's economic position in general. Yet the complexity and dialectical nature of this relationship is not fully appreciated in most analyses. As a result, recent progress in the area of family law reform may inadvertently entrench traditional assumptions about the role of women and men, perpetuating the myth of the male breadwinner, family-wage model.

In this article I argue that an analysis of “the State” is necessary in order to understand legal developments related to “family” that are relevant to efforts to combat the oppression of heterosexual women, as well as of lesbians and gay men. Drawing on recent debates concerning postmodernism and feminist theory, I review efforts to reconceptualize the nature of the state not as a monolithic institution, but rather as a set of arenas, or the site of various discursive formations. Because laws are generated from within, but are only part of, concentrated forms of state power, feminists and progressive groups that are engaging with law must retain an explicit analysis of the state. This analysis must be more nuanced and displaced than it has been in instrumentalist and structuralist accounts, in order to explore the ways in which feminists have influenced legal change and whether this influence is positive or negative for different groups. The limits on law's ability to fundamentally transform the social relations of oppression must however be recognized. In particular, the relationship between overall state trends—for example privatization—and trends specific to certain state arenas such as courts and legislatures—for example enhanced women's rights to men's property and increased legal recognition of same sex couples—must be traced in order to determine the political impact of seemingly progressive movements in areas related to “the family”.

This paper argues that understanding the potential roles law and the state can play as transformative tools in counter-hegemonic feminist struggle requires that they be historically and structurally situated and contextualized, for both can be and have been facilitative as well as repressive. The paper examines, first, the negative consequences of using criminal law and the criminal justice system as instruments of reform, arguing that criminal law lacks transformative potential because of its particular role vis-à-vis the welfare state, dominant ideologies, and the struggle for change. Rights struggles are examined next, and it is argued that feminists should engage with law only under certain specified conditions to advance particular aims. The paper suggests some legal dead ends feminists should avoid, then examines alternative strategies which, it is argued, have the potential to empower and thereby to produce real and lasting improvements in women's lives.

Lesbian and gay rights are argued as rights to privacy, rights to protection from violence, rights to equality as individuals, rights to equality as family units, rights of minorities or as part of a larger framework of the recognition of sexual diversity within the society. In the last decades Canadian law has recognized equality claims, first through the reform of antidiscrimination laws and later through the interpretation of the equality provisions in the Canadian Charter of Rights and Freedoms. The major current issue, important because it involves lesbian and gay visibility, is the recognition of same-sex couples for the range of rights, obligations and benefits connected with marriage or heterosexual cohabitation. Recognition is occurring through ad hoc reforms, often in response to litigation or to decisions of human rights tribunals.

The protection against torture is one of the core human rights, from which no reservation or derogation is permitted, even in time of war or crisis. The Committee Against Torture, created pursuant to the Convention Against Torture and Other Forms of Inhuman or Degrading Treatment or Punishment, has studied several aspects of treatment of the mentally ill. In some of the periodic reports submitted under the Convention, States parties have examined questions such as conditions of detention in psychiatric hospitals, administration of controversial treatments such as electrotherapy and psychosurgery, the abusive use of psychiatric detention for political purposes, and rules applicable to mentally ill persons accused or convicted of criminal offenses. However, in the periodic reports as well as their consideration during meetings of the Committee, relatively little attention is given to these questions, and some States make no mention of them whatsoever. This situation may be explained by the absence of specific guidelines from the Committee concerning the content and scope of the reports, the failure of non-governmental organizations to assist the Committee in this area, and the weakness of the Committee's investigatory powers.

Feminism has a particular problem in dealing with questions of sexuality. This is directly tied to the fact that it is our sexuality which has so often been used to deny us rights. Our ambivalence has led some of us to make strange choices. For instance, some of us have joined with conservatives, our natural enemies, campaigning against pornography. This paper looks at another area in which conflicts within the feminist philosophy have worked to confuse our responses and allowed them to be used to undermine the very people we proclaim ourselves the protectors of: women. In two major cases since 1990, the Supreme Court of Canada has quoted feminist words to undermine the position of prostitutes in our society. In addition, LEAF failed to apply for intervenor status on behalf of prostitutes in either case. What does it mean when mainstream feminism finds itself unable to listen to the demands of prostitutes' rights groups and to help them get rid of the laws that make their work more difficult and dangerous? What does it say about feminism as a true “women's movement” that we find ourselves unable to honor other women's assessment of their position in society and their desires for change.

There are three types of sexual moralism in evidence in the discussions regarding the regulation of prostitution: the overt moral fervour of the Victorian crusaders, the more covert moralism of contemporary crusaders (residents) and legislators, and the principled moralism of contemporary radical feminism. It is maintained—using arguments and evidence from the author's own and other Canadian research—that each type has contributed heavily to the failure to adequately evaluate the nature of sex work. As a consequence, our ability to develop appropriate social and legal policies has been severely restricted. It is argued that the key to appropriate social and legal reform lies in recognizing four points: prostitution per se is not different from other work; prostitution as currently practised is different; the evaluation of commercial sex must be conducted in the broader context of human sexuality; and it is essential to focus on the specificity of women, rather than the specificity of prostitution.

The leading argument of the paper is that the paradigm of legal positivism upon which the prosperity of the jurists was founded since the mid-19th century has now become detrimental to their innovative capacity. Three major trends are considered indicative of a process of paradigm shifting: the ever-increasing specialization of academic and practicing lawyers; the dialectical blurring of the separation between law, politics and morals; the declining intellectual autonomy of the legal science through interaction with the new technosciences. The segmentation of occupational interests and the class conflict opposing the new generations to their predecessors could announce the end of professional corporatism as the official mode of representing and organizing the legal community. Law professors and, first of all, law and society scholars can play a crucial role by providing a better understanding of the current transition to a new paradigm of law.

The trilogy of “pleasure/freedom/equality” is used as an element of analysis of women's sexuality in the feminist reflection on and fight for a radical transformation of society. Reinterpreting data collected in 1989, this analysis tries to better delimit the organization of social relations between the sexes in our society. This reflection is based on the work of McKinnon, Eisenstein and Cornell and privileges the following theoretical framework: “Sexuality is to Feminism what work is to Marxism.” Chances of a radical transformation of society imply a deconstruction/reconstruction of the trilogy's elements. For feminists, equality does not mean the abolition of the differentiation between genders but that of the hierarchy based on gender. The women's movement, by imposing its vision of an egalitarian sexual moral, shows the limits of liberal transformations and is confronted by dominating phallocentrism. Law as a legal discourse creates its own definition of sexual equality and contributes to determine the demarcation line between what constitutes legitimate sexuality and what constitutes illegitimate sexuality. Ultimately, a feminist reconstruction of society would liberate the human personality of restrictions imposed by sexual stereotypes while eliminating misogyny from liberal legalism.

In February 1991, the Supreme Court of Canada released R. v. Butler, a decision which upheld Canada's Obscenity Law by recognizing a relationship between pornography and sex inequality. This paper outlines the arguments made by the Women's Legal Education and Action Fund (LEAF) as intervenors in Butler, reviews how this decision could be interpreted, and offers for discussion arguments on some of the issues not addressed in Butler. In particular, it examines how LEAF's position affects lesbians and gay men and how the Butler decision can be used to advance equality arguments for sexual minorities. Given that Canada Customs have continued to discriminate against lesbians and gay men by targeting materials for these communities, feminists and other equality seekers must participate in the debate on how Butler will be interpreted and enforced.

This paper questions our incapacity to think out social relations beyond law and law systems. Why is it that justice must necessarily be attained by means of law? Even when feminist criticism of law adopts postmodernist ways such as in Drucilla Cornell's work, it nevertheless leads to the unavoidability of law. Or else to a juridico-political pessimism, as found in MacKinnon's work. Examining the feminist justification for resorting to law through the analysis of the Legal Education and Action Fund's intervention before the Supreme Court of Canada on the question of obscenity in the Butler case, it is argued that the judicial system stays shut to differance, to otherness, and, therefore, to justice.