BIJURALISM AND HARMONIZATION: GENESIS

EVOLUTION OF LEGAL SYSTEMS,
BIJURALISM AND INTERNATIONAL TRADE
(UNIVERSITY OF OTTAWA)

Morris Rosenberg,
Deputy Minister of Justice and
Deputy Attorney General of Canada

Ottawa, Ontario
October 20, 2000

Ladies and Gentlemen,
Distinguished Guests,

It was with great pleasure that I accepted the invitation extended by Louis Perret, Dean of the Civil Law Section at the University of Ottawa, to participate in a conference that will address current and future issues. These are issues that highlight, on the one hand, law as a normative body, and, on the other, market economies, which develop their own regulatory forces. The purpose of this conference is to allow us to share what we value most in the context of globalization: our commitment to modernize our law to better serve the interests of our respective nations, while facilitating and enhancing the ties that bind us together.

In my capacity as the Deputy Minister of Justice of Canada, a bijural country, I have a keen awareness of the topics to be discussed: development of legal systems, bijuralism and international trade.

These topics are sure to provide us with an extensive program. The narrowing of the gap between American and European realities could lead to the discovery of similarities as well as differences:

  • Have the legal systems we are dealing with developed in a similar fashion?
  • Do influence, integration and interaction characterize the coexistence of these systems on both sides of the Atlantic?
  • Finally, do the harmonization efforts undertaken by our respective countries encompass the same realities and objectives?

Furthermore, as our discussion deals with two themes, law and international trade, we cannot avoid bringing together two other rapidly growing realities: globalization and the rule of law. Many claim that these two realities are incompatible. However, bringing together these two realities could lead to unexpected, but fruitful, ideas.

Daniel Mockle recently wrote that [Translation] "globalization is generally associated with the emergence of a law without borders which could diminish the sovereignty of states in various areas within their jurisdictions." He goes on to say that "this development can be perceived as a threat to the integrity of national laws" [1]. However, we could also say that, far from being a threat, globalization can act, according to Mockle, as "a catalyst, [which] would favour the growth of rule of law" [2].

Globalization is also motivating Canada to implement important measures to modernize and enhance its legal system using Canadian bijuralism as a development factor. We believe that bijuralism is beneficial to our Canadian legal community. We also believe that it could be beneficial to the international legal community, which could use Canada as a model in many respects.

I plan to cover the following in my remarks: starting with the definition of bijuralism, I propose to open this conference by explaining the various forms of bijuralism and describing Canadian bijuralism as unique and as a valuable tool for a promising future.

1. Bijuralism and the concept of mixed law

As you are aware, bijuralism refers to the coexistence within a single state of two legal traditions. Canada is said to be a bijural country because, in this country, common law and civil law coexist in both official languages.

There are many instances of bijuralism around the world. Close to a hundred countries are in fact governed by a combination of two or more systems of law. Usually, bijuralism results from the juxtaposition of a legal system typically civil law or common lawand a pre-existing system of lawsuch as customary law, Islamic law or Talmudic law. The combination of civil law/common law is much less common; it is found in only about fifteen countries.

To understand bijuralism, one must analyze the concept of mixed law. A mixed-law state is one whose institutions are derived from different legal systems and are informed by the approaches and techniques of those legal systems.

The concepts of "bijuralism" and "mixed law" do not describe the same things. Two systems of law can, in fact, coexist within a single country without interacting with each other. In that case, the country may be described as "bijural", but not a mixed-law state. Canada, for example, is a bijural country because civil law is the lawof the province of Quebec and common law is the lawof the rest of Canada. On the other hand, Canada's federal law is a mixed law, because its drafting, interpretation and application take into account both civil and common law traditions.

The purpose of the initiative to harmonize federal legislation with the civil law in Quebec, implemented by the Department of Justice,is precisely to adapt federal statutes and regulations dealing with private law to the new concepts, institutions and vocabulary of the Civil Code of Quebec, which came into force in 1994. Mario Dion will be talking about the initiative this afternoon. It ensures that federal legislative policies will be more effectively implemented in Quebec while minimizing the problems of application and interpretation of federal statutes that may arise with the coming into force of the new Civil Code of Quebec.

One could say, therefore, that the development of systems of law that coexist is characterized by relationships involving influence, integration and interaction. Let me touch briefly on influence and integration and then deal with interactions.

Influence by means of interpretation or integration

Are civil law and common law as dissimilar as we are led to believe? Some authors go so far as to state that several of the differences between civil law and common law systems are more "apparent than real" [3]. According to these authors, the differences usually result from the manner and order of presentation of rules rather than from the content of those rules. They also state that the few fundamental differences could be largely explained by "historical accidents" [4].

The convergences in today's western society by and large transcend the differences between national systems as perceived and perhaps exaggerated in comparative law. In fact, one could argue that the similarities between civil law and common law outweigh the technical differences.

These similarities often result from the influences they exert on one another over time. For example, Quebec civil law is certainly a faithful reflection of French law. However, French law has philosophical echoes in English law.

For example, the manner in which judgments are handed down reveals a strong relationship with the practices of common law. Jurisprudence illustrates very well the mixed nature of Quebec law: Quebec judges, as civil law practitioners, do not reformulate rules established by a court according to the facts submitted to them. Following the example of French judges, they apply an abstract rule to particular facts. However, in contrast to French judges, Quebec judges set out their reasoning, as do their common law counterparts. In general, they give a detailed analysis of the rule in question, the judgements already applied to it and the legal literature, and then set out the reasons that have led to their applying that rule to the facts before them.

The interaction between two legal traditions: the concept of complementarity

The interrelationship between legal systems includes not only the influences that they have on each other, but also the interaction between their respective rules or principles.

The division of legislative powers in Canada has created a relationship of complementarity between federal and provincial law. The ties between the civil law of Quebec and federal law are similar to those between the common law of the other provinces and federal law, with the understanding, of course, that in Quebec the system of law is different.

Since the power of the Parliament of Canada is limited in the area of private law, provincial law will apply, in principle, in order to supplement federal statutes. For example, for the purposes of determining which creditors will have preference in a case of bankruptcy, the Bankruptcy and Insolvency Act relies on concepts set out in the private law of the provinces. In Quebec, these concepts are contained in the Civil Code.

Parliament also relies, implicitly or explicitly, on private law when it refers in the Income Tax Act to the concepts of trust and mortgage.

In Canada, therefore, the coexistence of two legal traditions is characterized in two ways at the national level: sometimes they influence each other and sometimes they interact

2. Accessible and efficient justice for Canadians and bijuralism as a factor of national and international development

Access to the law is one of the Canadian government's main priorities with respect to justice: all Canadians must be able recognize themselves in the laws enacted by the Parliament of Canada.

The complementarity between federal law, which is traditionally based on common law, and civil law constitutes the blueprint the Department of Justice uses to ensure that Canadian law develops appropriately, particularly with respect to the harmonization of federal laws with the civil law of Quebec. In the era of globalization of economies and markets, experience in the two most widely used legal systems is a strong asset for Canada and all bijural countries.

At the national level, a practitioner working in a bijural context develops a capacity to adapt to and conceptualize some of the most complex legal challenges. The former Canadian Ambassador to Germany, Gaétan Lavertu, stated in January 1999:

[Translation] Bijuralism leads our jurists to expand their area of expertise, which helps our legal community to forge closer ties and contributes to the excellence of the law faculties, the professionalism of our lawyers and the quality of our judiciary.

At the international level, Canadian jurists trained in civil law and common law can help draft texts that can be applied uniformly in countries with different traditions.

In the field of international private law, for example, section 28 [5] of the Preliminary draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters (adopted by the Special Commission of the Hague Convention), was recently drafted to specify that incompatibility with public policy of the State must be considered in relation to the recognition and enforcement and not the foreign judgment itself, since "this distinction, apparently unknown in common law countries, is essential for countries following the Romano-Germanic law tradition" [6]. Canadian jurists can make the most of their bijural abilities in this context.

Canada may consider itself a useful model by sharing the procedures for harmonization or co-existence of systems that it creates and implements in its national legislation. This would certainly be useful in bijural countries, but also in all countries dealing, through trade agreements, with partners whose legal systems differ from their own.

The development of the law, against a backdrop of increasing globalization of the marketplace, requires a harmonious coexistence among legal systems. In an article published in 1995 in International Business Lawyer, Robert Badinter pointed out that "globalization has led lawyers, especially those working in the international arena, to develop over the years a true jus communis of the international business world, an international common law for business of which jurists are not only the practitioners but also the authors".

In order to protect the valuable asset known as bijuralism, we have to find ways to promote it. We have to use technology to disseminate information about bijuralism, we need to train our law students in both legal systems, we need to encourage exchanges and other means of increasing dialogue between common law and civil law practitioners. Because bilingualism and bijuralism go hand-in-hand in Canada, there are four audiencesthat is to say, practitioners of civil law in both French and English, and common law practitioners in both English and Frenchthat communicate with one another. One measure of success could be, for example, the accessibility of the decisions of our courts and the writings of our learned authors in civil law, which are usually written and published in French, to our English-speaking colleagues.

In preparing to give this talk, I was discussing with colleagues in the department to what extent Canadian bijuralism could be characterized as a competitive advantage for Canada in a globalizing world.

We concluded that we could not answer the question, at least not now, in terms of hard quantifiable data.

That being said, we also concluded that looking at the question from an economic perspective is too narrow. That, in fact, a bijural culture can be a huge advantage for Canada, both within our country and abroad, as a concrete demonstration of respect and tolerance in both official languages, for all four legal audiences.

The practice of bijuralism in Canada places Canadian jurists in a privileged position in the world to encourage the progress of law and the harmonious coexistence of legal traditions and, therefore, to be active participants in shaping globalization.

As Dominique Turpin, Professor and President of the Université d'Auvergne, recently pointed out, globalization is not merely economic, it is an emerging planetary consciousness [7].

Conclusion

Bijuralism is being built on new foundations, where the issues and strategies inherent in the modernization of the justice system are found. In an era of globalization of economies and markets, experience with the two systems of law most widely used in the world, and the concrete expression of that experience, such as in Canada through legislation that applies nation-wide, are our guarantee of the future. A guarantee of the future, but also a challenge.

Over the next two days, let us consider the concept that is a new reality: bijuralism at the global level. That is our program.

Of course, I am able to make such ambitious statements because I have the privilege of being the first speaker.

Thank you.

Footnotes

  • [1] (2000) 41 C de D 27, 239-240.

  • [2] Ibid., p. 244.

  • [3] J. A. Clarence Smith and Jean Kerby, Le droit privé au Canada, Études comparatives, Ottawa, University of Ottawa Press, 1987, p. 12 et seq.

  • [4] Ibid.

  • [5] Section 28. Grounds for refusal of recognition or enforcement Recognition or enforcement of a judgment may be refused if . . . (f) recognition or enforcement would be manifestly incompatible with the public policy of the State addressed.

  • [6] Preliminary Document No. 9Synthesis of the work of the Special Commission of March 1998 on international jurisdiction and the effects of foreign judgments in civil and commercial matters, drawn up by Catherine Kessedjian, Under-Secretary-General, subs. 33.

  • [7] Expressed at the Conference, Mondialisation et État de droit, Montreal, Université du Québec, September 22, 2000.