Legal Dualism – A New Look into the Complexity of Canada's Legal Framework

The Canadian legal framework 

The framework in which federal law evolves is bilingual and bisystemic. In fact, the Canadian jurisdictional structure is defined by the simultaneous presence of French and English as official languages and by bisystemism, the co-existence of civil law and common law systems in private law. Furthermore, the structure is being constantly adapted according to the ongoing evolution of Canadian values and the imperatives of market and commercial trade globalization.

The dualism of the Canadian legal framework

Historically, the origins of Canada's competition legal duality can be found in the successive colonization of the territory, first by France and then by England. After the British conquest in 1763, the Quebec Act of 1774 allowed the preservation of French customary law in matters of private law (this private law officially became civil law with the adoption of the Civil Code of Lower Canada in 1866). Politically, the polarization of private law's legal systems was established by the Constitutional Act of 1791, which divided the territory between Upper and Lower Canada. This polarization was reaffirmed in the British North America Act when Canada was created in 1867.

The term "bisystemism" was adopted to designate this "de facto dualism", based on the co-existence of civil law and common law systems in private law. This "de facto legal dualism" may be contrasted against "de jure legal dualism", which is based on the division of legislative powers in private law between the federal government and the provinces.

More specifically in this regard, the provinces have the power under Canadian constitutional law to determine the private law applicable in their territory, outside of subject areas specifically conferred to the federal government's jurisdiction (i.e. intellectual property). The federal government also has the authority to refer to the legal concepts and rules of private law when the exercise of its legislative powers so requires.

The work of the Legal Dualism Team

In 2005, the Department of Justice Canada adopted an action plan establishing the Legal Dualism Team's mandate. Beyond creating bisystemic legal tools that take official bilingualism into account, this action plan also provided for the implementation of a complementary training program in civil law and common law for the Department's counsel. The program sought to take into account both legal systems in federal law.

Additionally, economic studies were undertaken, which explore Canadian bisystemism without considering its usual jurisdictional boundaries: on the one hand, these studies examine the economic value of legal expertise that could stem from bisystemism; and on the other, they examine the global emergence of new sets of rules and normative practices. This aspect of the Team's mandate helped enrich the understanding of the evolution of legal systems within a larger framework. As a result, two works have been published by private publishers.

"Methodological dualism":
a new foundation for bisystemic and bilingual legal tools

Analytical work was completed by observing the activities of the courts. The composition and use of a large textual database taken from decisions in Canada's judiciary corpus provided the Legal Dualism Team with the basis for its method. It involves not only understanding the various effects of the rules but also understanding the evolving relations established between these rules and the concepts in different legal areas and systems. In effect, courts have the difficult task of resolving complex legal and factual questions, calling upon a broad range of legal rules stemming from several domains.

Based on the observation of the legal corpus, the Legal Dualism Team's analytical approach differs fundamentally from the method that leads to the harmonization of federal laws or to the uniformization of law on either the national or international level.

This method gave rise to a first entirely bilingual and bisystemic work, The Legal Dictionary of Property in Canada. The completion of this work represents a first in the field of legal lexicography in Canada.

Here are the reference to the electronic version:

  • DES ORMEAUX, Anne and Jean-Marie LESSARD. Legal Dictionary of Property in Canada - Dictionnaire juridique de la propriété au Canada, [online], 2009. [dualjuridik.org], (April 6, 2010)
  • DES ORMEAUX, Anne et Jean-Marie LESSARD. Dictionnaire juridique de la propriété au Canada - Legal Dictionary of Property in Canada, [En ligne], 2009. [dualjuridik.org], (6 avril 2010)

Here are the reference to the hard-copy versions:

  • DES ORMEAUX, Anne and Jean-Marie LESSARD. Legal Dictionary of Property in Canada - Dictionnaire juridique de la propriété au Canada, Volume 1, Tome 2, Ottawa, Department of Justice Canada, 2009, 770 p.
  • DES ORMEAUX, Anne et Jean-Marie LESSARD. Dictionnaire juridique de la propriété au Canada - Legal Dictionary of Property in Canada, Volume 1, Tome 1, Ottawa, Ministère de la Justice Canada, 2009, 770 p.

Serving Canadians in a bisystemic legal framework:
complementary training in civil law and common law

In association with the University of Ottawa's Faculty of Law and the Department of Justice Canada's Professional Development Team, our counsel now have access to workplace-based complementary training sessions in civil law and common law. These training sessions are a concrete measure to ensure that our Department considers, in all of its functions, the private law of both legal systems.

Economics studies:
from national legal systems to the proliferation of sets of legal rules and practices - a "normative" universe in evolution

First cycle of economic studies

Piloted by the Department of Justice and coordinated by Professor Albert Breton, an eminent Canadian economist from the University of Toronto, the first cycle of economic studies was entrenched in the broader context of commercial trade globalization and of the proliferation of legal instruments coming from formal institutions in which governments participate as well as from individuals and private groups. Its primary objective was to consider the value of the expertise stemming from knowledge of both civil law and common law systems, within the perspective of the globalization of the legal services market.

Four research reports, accompanied by eight expert commentaries, were submitted as part of this project. These reports point out the difficulty in identifying the contribution stemming from knowledge of bisystemism within the multiplicity of existing jurisdictions and the variety of systems of legal rules, as opposed to other more clearly defined and applied areas of legal expertise (e.g., commercial law). With respect to market globalization and the proliferation of international and intersystemic commercial transactions, these studies highlight the ever-increasing complexity of relations between national laws, emphasizing the ever-growing need for adaptation through various evolving and co-evolving processes and mechanisms.

These reports and commentaries will soon be available on the legal dualism website.
Here are the references to the hard-copy versions:

  • BRETON, Albert and Michael TREBILCOCK (ed.). Bijuralism: An Economic Approach, Aldershot, ASHGATE, 2006, 228 p. (out of print)
  • BRETON, Albert et Michael TREBILCOCK (éd.). Le bijuridisme : une approche économique, Paris, Éditions ESKA, 2006, 228 p. (out of print)

Second cycle of economic studies

Also undertaken on behalf of the Department of Justice Canada and led by the Legal Dualism Team in association with the Ministry of Justice of the French Republic, the second cycle of studies was conducted under the direction of a scientific committee composed of experts from various backgrounds.

Consistent with the approach taken in the first cycle of economic studies, this second cycle dealt with the emergence of new sets of legal rules and practices from within a State's legal order (e.g., Canada and France) and from within an intergovernmental legal order (European Union). It also dealt with the mechanisms and processes that gave rise to these new legal rules and practices.

These studies describe the "multijuralism" created by the emergence of new administrative institutions within a State or even by the recognition of the normative nature, for example, of certain Aboriginal customs or certain religious practices. These studies also explore the creation of new legal instruments by private interests, such as standard contracts in financial law or the development by supranational institutions, of conventions or directives whose objective is to standardize the law of member state in certain domains (e.g., contracts). Furthermore, the studies also explored the influence that a new means of communication, such as the Internet, have on national and international law, in criminal law (cybercriminality). A return to the question of the legal expertise required for international transactions was conducted.

The nine study reports produced as part of this research project are now the subject of two works published by private publishers under the following titles:

  • BRETON, Albert, Anne DES ORMEAUX, Katharina PISTOR and Pierre SALMON (ed.). Multijuralism: Manifestations, Causes and Consequences, Aldershot, ASHGATE, 2009, 248 p.
  • BRETON, Albert, Anne DES ORMEAUX, Katharina PISTOR et Pierre SALMON (éd.). Le multijuridisme : manifestations, causes et conséquence, Paris, Éditions ESKA, 2010, 256 p.

See Table of Contents

 

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