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DETAILLED DESCRIPTION OF THE PROJECT
Index
Objectives
Background
Theoretical Context
Methodological Context
The primary objective of the "Canadian Bijuralism: Studies in Comparative Law" project is to produce a two-volume work presenting Canadian common law and Quebec civil law from a comparative law perspective. These volumes will help to correct a significant gap in Canadian legal scholarship, namely the absence of monographs designed to describe and analyse the duality that characterizes Canadian private law. For this purpose, an innovative methodology will be used, described in detail below under the heading “Methodological Context”.
The work will be a useful tool enabling civil law and common law jurists to acquire, in a Canadian context, a better understanding of these two legal systems, including their differences, similarities, strengths and weaknesses. In addition, the work will do so using the language of readers themselves, namely French for civilian jurists wishing to learn more about the common law and English for common law jurists who wish to have more information about Quebec civil law.
By providing jurists with a better understanding of Quebec civil law and Canadian common law, it is hoped that the project will foster a critical analysis of both systems. Once the various strengths and weaknesses of these systems have been identified, jurists may be more likely to correct deficiencies, if and when the opportunity arises.
The text will consist of two volumes: one in French, titled ÉLÉMENTS DE COMMON LAW CANADIENNE - Comparaison avec le droit civil québécois (“Common law”), and the other in English, titled ELEMENTS OF QUEBEC CIVIL LAW - A Comparison with the Common Law of Canada (“Civil Law”). A detailed analysis will be carried out by the members of the project, who will compare various aspects of these two systems. Certain areas of private law will be the subject of analysis - property, trusts, contracts and civil liability - because they best reflect the spirit of these legal systems. In effect, these areas constitute fertile ground for the proposed study since they have been less affected by statute law. In order to make a valid comparative study, however, the legal rules of a system must be placed not only in their legal and political context, but also in the historical, social and cultural context to which they belong. This will be the purpose of the first chapter of each volume. A chapter on private international law will conclude each volume since comparative law and private international law are related fields that share certain objectives and methods.
The first volume, Common law, is intended primarily for jurists with a civil law background; the second, Civil Law, is directed at their common law counterparts. Since the first volume will be in French and the second in English, the work will be a reflection of Canada's linguistic and legal duality in the context of its private law. These texts will not be purely descriptive. They will not be simple compilations or statements of the law. They will instead constitute an analysis, from a comparative perspective, of various legal rules in the areas chosen for study.
No work of this scope now exists in Canada and as a result, jurists wishing to initiate or pursue an analysis of Canada’s legal duality in a private law context have difficulty locating texts written in their language. Two monographs illustrate this deficiency. The work Éléments de common law et aperçu comparatif du droit civil québécois, constitutes a first step toward a more extensive work on the subject. This text, which was published in 1997, is still useful, but forecasts indicate it will be obsolete by 2007, the projected publication date of the proposed work. The book Quebec Civil Law - An Introduction to Quebec Private Law, published in 1993, despite a brilliant first part which remains relevant, contains very little comparative law, and the second part describes the civil law of Quebec before the new Civil Code of Québec came into effect. These two texts, which are introductory in nature, are designed primarily for students. The proposed work is much more comprehensive and is intended for a more demanding audience.
If there is one thing on which comparative lawyers agree, it is that there is, strictly speaking, no theory of comparative law to which all subscribe. Since the second half of the nineteenth century, the period during which comparative law as an independent field of study is generally considered to have arisen, there have been debates and discussions as to the nature, purpose, and even the methods specific to comparative law.
According to von Mehren (“The Rise of Transnational Legal Practice and the Task of Comparative Law” (2001) 75 Tulane L. R. 1215), comparative lawyers may be divided into three groups. The first considers each legal system or tradition as unique, as fundamentally different from others. From this standpoint, the task of the comparative lawyer is primarily to highlight differences and occasionally, using insights provided by comparative law, to improve his or her own law. A second group comprises comparative lawyers who believe that, prompted by transnational activities in all spheres of the economy and social life, the world is moving inevitably toward convergence in several fields of law. The task of the comparative lawyer is to facilitate this convergence. The third group takes the position that the law is characterized neither by uniqueness nor convergence. The responsibility of comparative law is to make clear to what extent and in what way there is convergence and to provide analytical tools that enable jurists from different legal cultures to understand each other’s intentions, positions and points of view. The members of the project subscribe to the views of the third group.
Unlike the traditional approach, which favours a positivist statement of rules of law, nowadays many comparative lawyers, including the members of the project, favour a broader and more critical theoretical approach. The comparative approach should extend beyond mere description: it should instead constitute a critical analysis of legal rules in terms of the social, economic and cultural context specific to the system being examined. In this context, it becomes necessary to bring together jurists from different systems, so they can contribute to the comparative exercise their extensive knowledge not only of rules of law, but also of the cultural and social factors underlying their system of law.
From the standpoint of methodology, comparative studies often consist of a description of the main components of a specific field of law, sometimes accompanied by a brief presentation of differences and similarities in the same area in the other legal system or tradition. This kind of study includes little or no theoretical analysis. Though valuable in some respects, this methodology has been rejected for the purposes of the proposed text.
Other studies constitute broad analysis of the major legal systems or traditions. This approach, although it contains a significant theoretical component, is not in any way suited to the proposed text, which is intended to be more specific.
A third approach is to study specific cases from a comparative standpoint. Jurists from various legal systems, all specializing in particular fields, work as a team with the aid of an editor or writer. In response to various questions, they describe the approach used in their respective systems for dealing with specific situations. It is the function of the editor or writer to collate the responses and highlight the comparative aspect. This is the rigorous methodology used by Schlesinger and his team (see Formation of Contracts – A Study of the Common Core of Legal Systems, Dobbs Ferry, N.Y., Oceana Publications; London, Stevens & Sons, 1968; see also, “The Common Core of European Private Law”, online: <http://www.jus.unitn.it/dsg/common-core/home.html>). When a comparative study involves several systems, it is reasonable to believe that only the analysis of specific cases will make it possible to identify the existence of a common core. However, since the objectives of the “Canadian Bijuralism: Studies in Comparative Law” project are different and involve instead the study of specific fields in two legal systems that coexist within a single country, the analytical method proposed by Schlesinger will not be used. Instead, the methodology described below, which to our knowledge is novel, will be used.
A team has been created for the project, consisting of Canadian jurists, trained in common law or civil law, specialists in their respective fields but without necessarily having bijural backgrounds. Under the direction of co-editors Aline Grenon and Louise Bélanger-Hardy of the Faculty of Law of the University of Ottawa, each person responsible for preparing a chapter (for example, the chapter on property in common law) will work closely with the person responsible for preparing the equivalent chapter in the other volume. Since these chapters will be written by different persons, they will not be exact copies of each other. Each will necessarily reflect the particular rules of the field being studied, the specific character of the writer, and his or her legal and cultural training, knowledge and personal observations.
In each chapter, after briefly outlining the rules specific to their respective fields, the members of the team will identify important points of difference or similarity. These points will be the subject of analysis, comparison and criticism. The researchers are invited to reflect on the influence that the other legal system might have on the field being considered. This kind of analysis calls for individuals who are prepared to leave the beaten path and abandon their usual ways of looking at rules with which they are familiar. Because of the limited number of jurists who are really familiar with both systems in a comparative law context in Canada, this is a considerable challenge. The solution involves bringing together jurists trained in each of the two systems and combining various perspectives, in order to facilitate a better understanding of various fields and therefore make a significant contribution to the development of private comparative law.
In view of the scope of the project and the number of jurists involved, efforts have been made to bring participants together from the very beginning of the project in order to enable them to exchange and comment upon each other’s chapters. All necessary steps have been taken to ensure uniform chapters, sixty to seventy pages long, in the published volumes.
To ensure that standardized legal terminology is used, revision of the volume on common law has been assigned to the Centre for Legal Translation and Documentation of the University of Ottawa, which has wide experience in the field of common law terminology in French. The revision of the volume on civil law will be assigned to the Quebec Research Centre of Private and Comparative Law (McGill University), in order to ensure the correct use of English terminology for Quebec civil law.
It is anticipated that the volumes be available from Carswell in the fall of 2008.
