Definition, implementation, and enforcement of legal pluralism by institutions with coercive power, with a focus on the Supreme Court of Canada
Essay instructions:
In “understanding legal pluralism: past to present, local to global” Brian Tamanaha argues that one of the lessons of legal pluralism is that law is more than a set of rules, it is a way of thinking about the world.
One particular way of thinking about the world can come to seem natural when it is defined, implemented, and enforced by institutions with coercive power.
The Supreme Court of Canada is one such institution. In recent years, the Court has been asked to decide cases in which different cultural and legal orders come into conflict.
Based on the insights in Tamanaha’s article, and in particular on his “Framework for Legal Pluralism” that he develops in pages 396-411 of the article, analyze the following case as an example of legal pluralism:
• Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551.
(This case involves a conflict over condominium owners building religious structures on their balconies.)
Your essay should briefly outline Tamanaha’s main arguments and the main points of the Supreme Court’s decision.
Your main focus should be on how – if at all – the Supreme Court deals with the problems of competing normative systems that Tamanaha discusses.
The following questions should serve as a guide :
• What normative orders are evident in the case? How do they differ? How do they conflict with each other?
• How does the Supreme Court solve (or attempt to solve) the problem of accommodating different cultural understandings of law? Do the majority and the dissent differ on this issue?
• How does the Supreme Court justify its decision? (Remember to address both the majority and the dissent.)
• Using this case as an illustration, is pluralism possible within a single state-based legal system and a dominant culture?
Or do differences in power and authority mean that the state inevitably suppresses pluralism?
In developing your analysis, be as specific as possible in providing evidence from the case and Tamanaha’s article to back up and illustrate your points.
In discussing the case, show where in the judgment you find an idea and explain how that evidence relates to the point you are making.
This doesn’t mean simply stringing together quotations from the sources – use your own words to show how your evidence fits your analysis, and refer the reader to the source by a citation.
Typos, grammar and spelling errors, vagueness, and other writing problems will negatively affect your mark, so proofread carefully before you hand in your paper.
Be sure to number your pages and to include a bibliography of works cited at the end of the paper.
This is not a research paper, and I do not expect you to go beyond Tamanaha and the Amselem case. However, for help getting your bearings on the question of religious freedom in Canada, you may want to consult the following article:
• Kislowicz, Howard. “Sacred Laws in Earthly Courts: Legal Pluralism in Canadian Religious Freedom Litigation,”
Queen’s Law Journal 39 (2013): 175-222.
Kislowicz discusses Amselem and several other cases involving religious freedom in the context of legal pluralism. His approach is different from this assignment, however.
If you use ideas from Kislowicz’s article, you must cite the article (see citation instructions below). Similarly, if you use any other sources in preparing the paper, they must be cited and included in your bibliography.
Note: the Amselem case (like most published cases) begins with a summary (called the “headnote”) provided to help lawyers (pp. 551-562). The headnote is written by editors, not the judges, and is not part of the official judgment.
It should not be quoted or cited. The official judgment – the court’s decision, written by the judges themselves – begins at the paragraph numbered 1 (on p. 563 of the judgment; the paragraph numbers are in the margin).
Citations: Your essay must provide proper citations to your sources (the case, Tamanaha’s article, and any other sources you mention or use). This means including references within the text and a bibliography of works cited at the end of the paper.
You have two choices for citation format (see below). Remember that whichever you use, you must provide a reference whenever you refer to a source, whether or not you are quoting it directly, paraphrasing it, referring to it, or taking information from it.
Avoid excessive quotations: direct quotations should be used sparingly, such as when your point depends on the specific words used in the source. Frequent and thorough referencing is crucial, however.
This means there will be a fairly large number of citations – in academic writing, it is not unusual for almost every sentence to include a reference. If your paper has very few citations, you are definitely not referencing closely enough.
Option 1: Footnotes. Cite your sources in sequentially-numbered footnotes (not endnotes).
The first time you cite a source give its full citation; for subsequent references to the same source, use an abbreviated reference. Include a bibliography at the end of the paper. The proper full citation for the case is above. For subsequent citations, use a short form such as Amselem (note that case names are always italicized).
For pinpoint references, cite the paragraph numbers in the case (in the margins on the PDF), not the page numbers. For Tamanaha or other secondary sources, give the full citation the first time, and for subsequent citations use the author’s last name, along with a page reference.
Option 2: In-Text Parenthetical References (e.g. APA style)
Cite your sources using abbreviated references in parentheses within your text, including a paragraph number for the case, and a page number for Tamanaha or other secondary sources. At the end of the paper, include an alphabetical list with full references for all sources used. The full citation for the case is above.
Since a case does not really have an author, your parenthetical reference should include a short form of the case name (Amselem – note that case names are italicized) and the year. For pinpoint references, cite the paragraph numbers in the case, not the page numbers. So a reference might look like this: (Amselem, 2004, para. 10).
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