Book review of : Risk and Resistance: How Transformed the Law and Science of AIDS by Aziza Ahmed
In this article, I aim to vindicate the “living tree” approach to constitutional interpretation by proposing that constitutional statutes are “always speaking,” a proposal which I suggest clarifies the approach and explains its proper place in doctrine. After reviewing the “living tree” approach and recent criticism of it, I adopt a unified approach to constitutional and statutory interpretation, and I provide an account of the “always speaking” principle of statutory interpretation. I use the account to suggest that the “always speaking” principle of statutory interpretation manifests itself as the “living tree” approach in constitutional interpretation, and I explain how the “living tree” approach is (and is not) linked to the purposive approach and to “originalism.”
For over a century, Canadian lawyers have been prohibited from agreeing to contractual clauses limiting, allocating, or excluding their civil liability—a stark contrast to the graduated regimes governing other Canadian professionals and lawyers in major international jurisdictions, including the United Kingdom, United States, Australia, Germany, Switzerland, and Belgium. This article seeks to initiate a critical conversation about legitimizing such clauses. It anchors its analysis in doctrinal integrity, economic efficiency, and policy, addressing competing objectives in relation to fiduciary responsibility, the market for legal services, and liability insurance. In doing so, this work delineates the benefits and bounds of contractual freedom, explores requisite client and public interest safeguards, and articulates guiding principles towards a legitimate privately ordered regime. Carefully crafted, such a regime derives legitimacy because of—not in spite of—the competing interests of lawyer, client, profession, and public, which demand stabilization.
The Kanien’kehá:ka of Kahnawà:ke have been subjected to the Indian Act since 1889. Its forceful imposition has eroded ancestral governance systems and severed vital threads of cultural and social life. In 2024, the Mohawk Council of Kahnawà:ke—the Indian Act band council—declared its intent to restore traditional governance and unilaterally end the Indian Act’s reach within the territory. This work is presently underway in Kahnawà:ke. Against this backdrop, and in light of generations of collective experiences of trauma brought on by the forces of settler-colonialism, this article considers what role Haudenosaunee law can play in bringing community members together to build inclusive governance and law-making practices beyond the Indian Act. This article suggests that Haudenosaunee law, and more specifically, Kaienerekowa – the Great Law of Peace, can serve as a constitutive and guiding legal framework for Kahnawà:ke at this critical juncture. More broadly, the article explores how the resurgence and practical application of Indigenous laws can offer a path forward for Indigenous communities seeking to restore traditional governing practices that are grounded in the collective wisdom, knowledge, and legal traditions of our ancestors.
