Polygamy and the Predicament of Contemporary Criminal Law

This piece steps back from the substantive debate about whether polygamy out to be prohibited by the criminal law, or about the presence or absence of harms that inhere in the practice, asking instead what the debate discloses about the conceptual structure of contemporary criminal law itself. The paper proceeds from two observations about the current debate regarding the constitutionality of the criminalization of polygamy: first, that the issue has generated a degree of anxiety and attention disproportionate to the prevalence of the phenomenon and, second, what one might call a “strange bedfellows” puzzle – the fact that groups of commentators with strikingly divergent substantive commitments have converged in their defence of criminal prohibitions on polygamy. Examining these two features of the debate, this piece argues that polygamy has emerged as an issue with a particular capacity to expose a particular vulnerability at the heart of contemporary criminal law. Specifically, the polygamy debate points to a metaphysical shortfall that afflicts contemporary criminal law, a shortfall that is not something to be remedied but, rather, reflects the predicament of criminal law under the liberal culture of the constitutional rule of law

Law\u27s Religion: Rendering Culture

This article argues that constitutional law\u27s inability to deal with religion in a satisfying way flows, in part, from its failure to understand religion as, in a robust sense, culture. Once one begins to understand the Canadian constitutional rule of law itself as a cultural form, it becomes apparent that law renders religion in a very particular fashion, and that this rendering is a product of law\u27s symbolic categories and interpretive horizons. This article draws out the elements of Canadian constitutionalism\u27s unique rendering of religion and argues that, although Canadian constitutionalism claims to understand religion as a culture, this is true only in the thinnest of senses. More accurate (and more illuminating) is the claim that law\u27s view of religion is, itself, profoundly cultural

Constitutional Principles in Substantive Criminal Law

Since Milsom’s famous dismissal of the “miserable history of crime in England,” criminal law has undergone a revolution in constitutional significance. The rise of rights constitutionalism as the heart of the modern liberal rule of law has given criminal law a new life in which it is subject to substantial justice-based innovation through appeal to the internal and basic norms of the legal system itself. Far from the marginal and exceptional status once ascribed to it by Milsom, this chapter argues that criminal law is now best understood and approached as a species of constitutional reflection. Substantive criminal law has become a laboratory for the constitutional, focussing and advancing classic questions of constitutional concern, while at the same time traditional questions of criminal law theory have themselves begun to translate into a constitutional register. Thematically, this chapter considers the way in which substantive criminal law has become a site for reflection on sovereignty and state violence; the anthropology of the legal subject; the rule of proportionality; and the relationship between judgment, discretion, and mercy. The chapter then turns to the constitutionalization of questions of the limits of the criminal law, fault, criminal defences, and standards for punishment. Juridical exploration of the relationship between substantive criminal law and constitutional principles has been uneven across national traditions; accordingly, this chapter draws significantly from the Canadian jurisprudence, which has been at the vanguard of this process. Ultimately, the chapter identifies a challenging irony: that despite a profound change in the imaginative relationship between criminal law and the larger legal structure, more of Milsom’s assessment remains apposite than we might have hoped – the contemporary history of criminal law is still invested with its share of misery and much criminal justice is still left to be done in spite of the law

Religious Diversity, Education, and the \u27Crisis\u27 in State Neutrality

Education – and particularly public education – has become a crucible for the relationship between state and religious diversity, a principal site for contemporary debates about the meaning of secularism and the management of religious difference. This is so across a variety of national traditions, and despite wide differences in the historical and “emotional inheritances” surrounding the configuration of law, politics, and religion. Through an exploration of Hannah Arendt’s thought about responsibility and freedom in education, this article works towards a better understanding of why education is such a crucial and fraught field in the modern encounter between religion and law. The article turns to the recent jurisprudence of the Supreme Court of Canada to draw out the implications of these ideas, arriving ultimately at a claim about the nature and limits of the concept of state neutrality

Poetry, Mercy, and the Phenomenology of Justice

What would a phenomenology of justice look like and what role would mercy play in that account? The unruly experiences and lives of the individuals and communities wrapped up in the dramas of justice are paradoxically distant from legal and philosophical reasoning, laundered by rules of evidence for the instrumental exigencies of the former, and frequently effaced by the disciplinary conventions of the latter. One casualty of these habits of reflection is our understanding of the role of mercy in the experience of justice. Wanting to recapture space to imagine the role of mercy in justice, this paper makes an exploratory turn to a world consumed with representing the messy experience of justice and still thick with the language of mercy – to the poetic and narrative world created in the Book of Jonah. Drawing inspiration from a close reading of this mythic tale, I argue that mercy is an essential feature of the phenomenological architecture of justice, requiring us, as it does, to connect abstract judgment with the complexities and exigencies of our concrete conditions. Though distant from contemporary legal and political theory, I argue that mercy in fact remains an uncanny aspect of our experience of justice and so demands a political and legal scholarship that spends as much time reflecting on the sources and nature of mercy as a political virtue, as it does on the demands of reason and the dictates of law alone

Moral Judgment, Criminal Law and the Constitutional Protection of Religion

What, if any, is the conceptual relationship between the constitutional protection of religious conscience and the criminal law in a modern liberal democracy? This paper examines this issue in the context of contemporary Canadian criminal law and the protection of religious freedom and equality in the Canadian Charter of Rights and Freedoms. The paper argues that there is a deep, though heretofore unexamined, conceptual tension between these two fields of law: The constitutional protection of religious freedom and substantive criminal law are both centrally concerned with the role of the state in making and enforcing moral judgments, but are contesting this boundary from different directions. This paper first traces a variety of modes of interaction between the constitutional protection of religion and substantive criminal law since the introduction of the Charter in 1982. The paper the n examines certain turns in the Supreme Court’s approach to both religious freedom and the criminal law, offering critical reflections on the current conception of religion, the role of Charter values in contemporary constitutional adjudication, and modern debates about harm in the criminal law. Concluding that all of these developments suggest that the deep moral tension between these two areas is bound to grow in years to come, the paper examines examples drawn from contemporary issues in Canadian criminal law — the role of religion in the defence of provocation and the constitutionality of the criminal offence of polygamy

Polygamy and the Predicament of Contemporary Criminal Law

This piece steps back from the substantive debate about whether polygamy out to be prohibited by the criminal law, or about the presence or absence of harms that inhere in the practice, asking instead what the debate discloses about the conceptual structure of contemporary criminal law itself. The paper proceeds from two observations about the current debate regarding the constitutionality of the criminalization of polygamy: first, that the issue has generated a degree of anxiety and attention disproportionate to the prevalence of the phenomenon and, second, what one might call a “strange bedfellows” puzzle – the fact that groups of commentators with strikingly divergent substantive commitments have converged in their defence of criminal prohibitions on polygamy. Examining these two features of the debate, this piece argues that polygamy has emerged as an issue with a particular capacity to expose a particular vulnerability at the heart of contemporary criminal law. Specifically, the polygamy debate points to a metaphysical shortfall that afflicts contemporary criminal law, a shortfall that is not something to be remedied but, rather, reflects the predicament of criminal law under the liberal culture of the constitutional rule of law

The Virtues of Law in the Politics of Religious Freedom

The moral force and capacity for inspiration of both religion and politics alike arise in part from the sense that they authentically map the world as we find it, yielding claims about how it should be. This paper asks what role we might imagine for law in this “hyper-real” world of religion and politics, arguing that law can display distinctive virtues linked to its capacity for strategic agnosticism about the real. Applying Sunstein’s idea of “incompletely theorized agreements” to the politics of religious freedom, the paper examines the role of law as a tool of adhesion in two very different constitutional settings – Canada and Israel – and argues for modesty as a functional virtue in law and legal process. Viewed in this way, law draws its worth from its tolerance for ambiguity, its sub-theoretical nature, and its pragmatic proceduralism, seeking to sustain political community in the presence of normative diversity, rather than speaking truth to difference

A More Lasting Comfort?: The Politics of Minimum Sentences, the Rule of Law and R. v. Ferguson

As a priori political judgments about what is a just punishment in all circumstances, minimum sentences pose particular and profound problems for the administration of criminal justice. Mandatory minimums are, however, politically seductive. Faced with their proliferation in Canadian penal law, Canadian courts have experimented with using the constitutional exemption as a means of addressing the excesses created by mandatory minimum sentences. This experimentwas terminated in the Supreme Court of Canada’s recent decision in R. v. Ferguson. Although this judgment has been met with dismay in some quarters, this paper argues that the decision is best read as a welcome disruption of the troubling politics of minimum sentences and sends the right message about the substantive demands that we make of our penal laws and the responsibilities of politicians in their approach to criminal justice