Monday, January 14, 2008

Quebec's legal system: Civil & Common Law

Numerous laws and regulations shape our daily lives and help preserve the crucial balance between our individual and our collective rights and freedoms. To allow every person to exercise his or her natural and inherent freedoms within the confines and limit of every other person’s natural and inherent freedom, we, as individuals living collectively, must forgo and restrict to a certain extent our own personal autonomy for the benefit of the collective good. We have thus collectively entered into an implicit contract, a social contract, comprised of the aforementioned laws and regulations offering us the required protection and fostering our development within the social framework.

There are two major of legal systems upon which the social contract nourishes itself from: the Common Law and the Civil Law. Firstly, the British Common Law is a legal system based upon jurisprudence, going back to the Norman Conquest in 1066. Such decisions are referred to as “precedents” where the ratio decidendi, the rationale of the decision, is applied to future cases similar in nature. On a long run, the decisions or precedents thus establish and dictate the legal framework applicable to persons within the Common Law jurisdictions. Precedents can, however, only be overruled by Statutes or new laws adopted by the government, essentially keeping in check the powers vested upon the judicial system.

Secondly, the Civil Law, rather than primarily basing itself on decisions or precedents, is based upon a strict and general codification of the legal parameters applicable in the jurisdiction. This set of “written” laws are more commonly referred to as a “code” which is comprised of a logical and structured sequence of provisions governing the people. A judge need not base his or her ruling on precedents of cases presenting circumstantial similarities but must interpret the facts as evidenced before the court of law in accordance with the Statutes and the written laws of the land.

Specifically, the Civil Law, taking roots in the Roman tradition, is a written codification of the laws governing persons, their relationships and their property. France adopted, further to the French Revolution in 1789, the Code Napoléon, covering matters such as the legal attributes of a person, relationship among individuals, property and institutions governing the relationships thereof.

As mentioned previously, we have collectively entered into a “social contract” where we are individually, living in a given society, a party to this contract and therefore subject to the provisions thereof, consisting of all applicable laws adopted by our elected representatives. The social contract, from the moment of our conception, birth, our childhood, adulthood and ultimately to our death, even in the handling of our bodies upon passing, provides for and establishes guidelines, some imperative, serving as pillars to the societal foundation.

In Quebec, the Civil Code of Quebec ("C.C.Q.") is an essential component to our social contract, dictating, in some cases, or suggesting, in others, logically and in a structured manner, the legal parameters among persons, relations among persons and their property. However, there is a bijural legal system in Quebec based upon the English Common Law and the French Civil Law. This unique legal structure is found in only two jurisdictions in North America mainly due to their colonial history: the state of Louisiana and the province of Quebec. Thus, our social contract is an amalgamation or merger of both the English Common Law and French Civil Law traditions, having distinct origin and approach, resulting in Quebec’s unique legal landscape.

The C.C.Q. came into effect on January 1, 1994 replacing the former Civil Code of Lower Canada (“C.C.L.C.”) enacted by the Legislative Assembly of the Province of Canada in 1865, which came into effect as of July 1, 1866. Over the years, and further to numerous modifications and amendments, the provisions of the C.C.L.C. became outdated and needed reform; it was was no longer as logically structured and coherent as it first used to be. Major societal changes and breakthroughs, since the adoption of the C.C.L.C., over the course of the following century, completely altered the social and legal scenery in Quebec and the C.C.L.C., more and more liberally interpreted by the judicial bodies, was in a desperate need for modernization.

In 1955, the Government of Quebec embarked on a reform of the C.C.L.C by establishing the Civil Code Revision Office where consultations were held, reports produced, subsequently leading to the Draft Civil Code, tabled in the Quebec National Assembly, some twenty-three years later, in 1978. Progressively, in the following decade, the Draft Civil Code slowly but surely took shape and paved the way for the adoption of the C.C.Q. as a law on December 18, 1991, taking effect as of January 1, 1994.

Undoubtedly, the reform of the C.C.L.C. and adoption of the C.C.Q. was, within the civil law jurisdictions around the world, one of the largest and most complete recodification undertakings. Remarkably, the C.C.Q. was, in 1994, a complete restatement of the civil law of Quebec, which included judicial interpretations of the provisions of the C.C.L.C., where applicable. The C.C.Q. very nicely summarizes its purpose in the Preliminary Provision:

“The Civil Code of Québec, in harmony with the Charter of human rights and freedoms and the general principles of law, governs persons, relations between persons, and property.

The Civil Code comprises a body of rules which, in all matters within the letter, spirit or object of its provisions, lays down the jus commune, expressly or by implication. In these matters, the Code is the foundation of all other laws, although other laws may complement the Code or make exceptions to it.”

The C.C.Q. today is the fruit of centuries of evolution and plays a central role in our daily lives. It is this Code that offers every person the civil protection necessary and imposes upon the same restrictions and obligations allowing peaceful interaction among all. “Every human being possesses juridical personality and has the full enjoyment of civil rights” (art. 3 C.C.Q.) and “every person is fully able to exercise his civil rights” (art. 4 C.C.Q.). However, “no right may be exercised with the intent of injuring another or in an excessive and unreasonable manner which is contrary to the requirements of good faith” (art. 7 C.C.Q.).

The history and evolution of every legal system is rich and fascinating; that of Quebec is no exception.


Tarun Jain said...

nice written Amir, I liked the simplicity of language with which you put in words the essential traits of common law and civil law systems. It also adds to my knowledge on Quebec's legal system of which I had hitherto been unaware of.
However as regards the origin of civil law, I would rather not end with the Code Napoléon but would rather go back a bit long further and in fact consider Justinian Code as the first and most influential codes establishing the roots of civil law.

Amir Kafshdaran said...

Thank you for the good comment. I'll throw in a piece of the Justinian Code in perhaps in another post!

Anonymous said...

Hi. I like your blog. I found it searching on "Quebec civil law" after I saw it referenced in mass media story, seen in the US, about the 12 year old Quebec girl who, seemingly, was not allowed to be punished by her father. I wonder if it is an aspect of Quebec civil law that leads to that decision (as opposed to common law -- sorry if my terminology is wrong -- I am not a lawyer). I didn't know anything about the Quebec legal system and now I do. Thank you.

Cheers from the states.