A Reflection on Section 2(b)’s Quixotic Journey, 1982-2012

The point of departure for the journey ahead is the journey behind, from 1982 to 2012. This reflection describes section 2(b)’s journey in the first 30 years of the Charter as quixotic: principle led the way at times but too often and too easily was displaced by unsound methodologies. The expressive freedom jurisprudence developed an incoherent methodology that applied content neutrality under section 2(b) but readily upheld content-based limits under section 1 by deferring to perceptions — both legislative and judicial — that certain expressive activities are harmful. Meanwhile, the status of the press and media under section 2(b) remains unclear because the Court has been unwilling to constitutionalize the newsgathering function or acknowledge that interference with that function violates the Charter. By contrast, the Court’s response to open justice — which engages expressive and press interests — produced a methodology that gave strong protection to values of access, transparency and accountability in the justice system. Having discussed the doctrinal patterns and anomalies of the first 30 years, this reflection looks ahead — to offer a more holistic view of section 2(b) which highlights process values, and to outline the steps that must be taken to demonstrate that the Charter’s guarantees of expressive and press freedom truly matter

Legal transparency through multi-layered drafting. Having your cake and eating it too?

Law is often left out of discussions about transparency. Huge amounts are said and written about transparency in business, government and even social interactions (Hood 2006 p.6-7); but law is usually ignored. Why is that? Perhaps the answer is that we assume that law is already transparent, because transparency is the core formal principle of law. Law has strong formal transparency: statutes, regulations and important caselaw are always published; if they are not published, according to the principle of legality, they are not law. Individuals, in certain situations, have non-derogable rights to legal information. The rule that ignorance of the law is no excuse for illegal activity is premised on the idea that ignorance of the law is a choice, and that any person who wishes to educate themselves about their rights and obligations can do so. Despite this, law often fails to create effective transparency; that is, transparency which actually communicates information from a source to a receptor, with the information then being processed and understood by the receptor (Heald 2006 p.35). It is safe to say that noone – not even lawyers – are actually aware of more than a fraction of the rights and duties they possess.. To some degree, this is an inevitable result of the size and complexity of law: it is also in part a result of the inherently uncertain nature of law – legislative, jurisprudential, implementation and social changes constantly alter the meaning of laws

Cultural appropriation and the intimacy of groups

What could ground normative restrictions concerning cultural appropriation which are not grounded by independent considerations such as property rights or harm? We propose that such restrictions can be grounded by considerations of intimacy. Consider the familiar phenomenon of interpersonal intimacy. Certain aspects of personal life and interpersonal relationships are afforded various protections in virtue of being intimate. We argue that an analogous phenomenon exists at the level of large groups. In many cases, members of a group engage in shared practices that contribute to a sense of common identity, such as wearing certain hair or clothing styles or performing a certain style of music. Participation in such practices can generate relations of group intimacy, which can ground certain prerogatives in much the same way that interpersonal intimacy can. One such prerogative is making what we call an appropriation claim. An appropriation claim is a request from a group member that non-members refrain from appropriating a given element of the group’s culture. Ignoring appropriation claims can constitute a breach of intimacy. But, we argue, just as for the prerogatives of interpersonal intimacy, in many cases there is no prior fact of the matter about whether the appropriation of a given cultural practice constitutes a breach of intimacy. It depends on what the group decides together

Contested Cases of Statutory Interpretation

This paper proposes an argumentation based procedure for legal interpretation, by reinterpreting the traditional canons of textual interpretation in terms of argumentation schemes,which are then classified, formalized, and represented through argument visualization and evaluation tools. The problem of statutory interpretation is framed as one of weighing contested interpretations as pro and con arguments. The paper builds an interpretation procedure by formulating a set of argumentation schemes that can be used to comparatively evaluate the types of arguments used in cases of contested statutory interpretation in law. A simplified version of the Carneades Argumentation System is applied in a case analysis showing how the procedure works. A logical model for statutory interpretation is finally presented , covering protanto and all things considered interpretive conclusions

Exploring the interplay between gender, organizational context and career: A Sri Lankan perspective

Purpose – This paper aims to explore how highly skilled women workers in Sri Lanka navigate organizational contexts via different modes of engagement in pursuit of hierarchical advancement. The purpose is to contribute new insights into existing understandings of women's careers in diverse socio-cultural contexts. Design/methodology/approach – This paper is based on one-to-one in-depth interviews conducted with 24 Sri Lankan women in early, mid and late career. Findings – The findings reveal how the women in this sample actively used eight modes of engagement to manage themselves in organizations and vertically advance in their careers. The implications of these modes for organizational contexts and women's careers are highlighted. Originality/value – This paper contributes to the limited literature on women's careers in South Asia and develops existing understandings of modes of engagement individuals use to develop their careers

Determining hierarchy between conflicting treaties: are there vertical rules in the horizontal system?

Treaties are contractual instruments that may provide special rules of priority in case they conflict with other treaties. When a treaty does not provide such rules, however, priority is determined by the rules of the Vienna Convention on the Law of Treaties (VCLT) and/or general principles of law. This article argues that both the VCLT and general principles of law do not provide an adequate solution to treaty conflicts. It suggests that the solution to treaty conflicts rests in a value-oriented reading of international law and the norms incorporated in treaties. Norms represent values and values represent interests or benefits for which international society requires protection. Conflicts of treaty norms are, therefore, conflicts of values that courts and dispute settlement bodies resolve by ordering a hierarchy of competing interests and protecting the most important interests in a given context