Introduction
The fundamental differences between the British common law system and Quebec’s civil law system are associated with the national, historical, political, psychological, and other characteristics of countries and peoples. Due to its natural and other features, each of these legal systems develops on its own. This development, along with significant special features, allows each of them to acquire its individuality. This not only does not exclude but, on the contrary, strongly suggests that each of these legal systems can adopt norms, institutions, and other traditional features peculiar to another legal system. However, this does not change either the original nature of the basic parameters and fundamental elements of each of the legal systems that remain what they have always been. Quebec’s civil law system most closely, in comparison with other systems, correlates with the common law system of Great Britain in several parameters. It is several significant distinctive features that allow drawing a dividing line between these two legal systems.
Background
The inclusion of the colony of New France, which is the province of Quebec now, into the possessions of the British Crown put official London in a dilemma. It was possible to extend the already established and tested model of the legal system in the so-called royal colonies to Quebec. Its prototype was the constitutional structure of England itself during the first Stuarts. This option assumed the replacement of the French-born law system of the settlement with the English one. This is what the colonists of New England wanted, and the French-speaking inhabitants of the newly annexed colony feared. However, at that moment, there was an aggravation of the conflict between the metropolis and the territories of New England. Consequently, this option was quite reasonably perceived by official London as potentially dangerous from a political perspective.
An alternative to it could only be the preservation of the territorial law that had developed at the time of the conquest of Quebec. This was justified by the peculiarity of the colony and the desire to preserve the loyalty of the new French-speaking subjects of the English Crown. Then their complex relations with the colonists of New England would have been taken into account. As a result of this historical process, the sources of British common law were fully restored in Upper Canada, which now is the province of Ontario. In the other, Lower part of Canada, which is now the province of Quebec, the later codification of civil law was carried based on the legislation of Napoleon. Both colonies held elections to legislative assemblies, the acts of which became an essential link in the system of sources of territorial law. Thus, Quebec remained the only of the British possessions in North America that maintained its dualistic system of sources of law. In addition, it is the only one of the provinces of modern Canada where such a system has developed.
The Difference Between Quebec’s Civil Law System and British Common Law System
Legal Thinking
The elementary particle of the legal system in both the British common law and Quebec’s civil law system is a legal norm. However, understanding the rule of law as a legal structure and its structural design is different in these law systems. Modern researchers associate the logical operations prevailing in the thinking of lawyers of the British common law and Quebec’s civil law systems with the main types of sources of law. There is a qualitative difference in the general logical operations of thinking of lawyers on Quebec civil and British common law. This fact has been repeatedly pointed out in the legal literature devoted to legal review in various legal systems. The main conclusion that most scientists come to is the idea that the thinking of Quebec lawyers is characterized by deduction. The deduction is the movement of thought from the general provisions of the law to the solution of private cases.
For lawyers of the British common law respectively, induction is more widespread. It leads from casual precedents and customs to a legal norm of a more or less general nature. At the same time, deduction and induction are types of conclusions that reflect the direction of thought from the general to the particular or vice versa. Deduction implies the culmination of a specific judgment from a general one, and induction suggests the conclusion of a public decision from particular ones. It should also be noted that the inductive thinking of British common law lawyers is connected with the idea that verbal formulations of norms are open to reinterpretation. Deductive thinking in the system of Quebec civil law is associated with the idea of an unambiguous meaning of laws revealed through interpretation. The thinking of lawyers of the British common law system is initially more unrestricted and more creative. This offers lawyers more freedom to maneuver and imposes a greater degree of responsibility on them.
The Source of Law
In British common law, there are two types of subordination in the system of sources. Firstly, it is subordination, based on the possibility of canceling one act by acts of other bodies. Secondly, it is compliance, based on the origin of the source and on the authority of the body that issued the act. This is the basis for the division of sources into main and derived ones. Since the precedent and the law are independent in their validity from each other or other sources, they can be called the primary sources. However, the precedent is subordinate to the law because the law can cancel the precedent. The close interweaving of law and precedent is the reason that British lawyers prefer to leave the question of the supremacy of a particular source open. The system has a delegated legislation since it depends on the law by origin, and it is a subordinate source. Thus, the formal source of law in the British common law system is both statutory law and case law.
The method of establishing legal norms in Quebec’s civil law system is only based on statutory law. The sources of civil law in Quebec are exclusively generally recognized principles and standards of law and contracts that are an integral part of the legal system. The primary source of civil law in Quebec is the law only. Among the civil legal acts, the main codified act is the Civil Code. The main task of a lawyer of Quebec’s civil law system is to bring a specific case under the action of a particular rule of positive law. Individual laws are created and applied as subordinate to the code. In contrast to the British common law system, the precedent as a source of law in Quebec’s system plays a minor role.
The Classification of Laws
Significant differences between British common law and Quebec’s civil law system are expressed in the classification of laws. In British common law, there is no division into public and private law. There is also no division into civil, commercial, administrative, or social security law, as in Quebec’s civil law. First of all, there is a division into common law and the law of justice in the British law system. Common law is a set of judicial precedents developed during the consideration of various cases by the courts of England since the formation of the general courts. These precedents are based on the central part of the decisions made by the courts of England and are mandatory for application in consideration of similar cases. The law of justice is a set of rules created by the Court of the Lord Chancellor to supplement the sometimes-revised system of common law.
On the contrary, there are many separate branches of law in Quebec, for example, civil, civil procedure, and commercial law. The legislation of Quebec considers the content of the law and the range of public relations regulated by it, and the method of influencing them. In this regard, a typology of laws for the main spheres of state and public life is proposed. It is based according to the nature of the most typical and stable relationships regulated by law. Based on a meaningful assessment, the laws in Quebec’s civil law system are grouped in terms of the uniformity of the subject of their impact, thereby ensuring their purposefulness and complexity. In this way, branches of legislation are formed, for example, on labor.
Litigation Procedures
The judicial process in the British common law system is adversarial, based on the parties’ procedural equality and the division of functions between the accused, the defense, and the court. In such a process, the prosecutor proves the accused’s guilt, and the court acts as an arbitrator in the process. The adversarial process is characterized by the consideration of cases by a jury. The evidence is evaluated according to the internal conviction of the judges. The judicial process in Quebec’s civil law system has unique content in terms of origin and legal content. It is a particular system of law, which consists of several relatively separate parts and resembles the procedure of church law.
The peculiarity of the judicial system of civil law in Quebec is the predominance of the principle of investigation concerning the regulation of competition in the field of criminal procedure law. This process resembles the inquisition in church law and has several peculiar features. It is distinguished by the presence of a liberal rule regarding the admissibility of evidence in the case. In addition, a subjective standard of proof is established for this principle, according to which the defendant’s guilt must be proved even before the judge’s internal conviction. The state prosecutor is granted the right to appeal the acquittal decision of the court of the first instance in the case. The actual consideration of the case takes place in the Court of Appeal. A civil claim is acceptable by the same court that considered a related criminal case related to the same factor or circumstance.
Codification
Belonging to the Romano-Germanic legal family is expressed in Quebec’s law system primarily by the presence of several codifications. There are Civil, Criminal, and Procedural Codes of Quebec; the Province of Quebec currently has a French-style Civil Code. In other words, the legal structure of legislative acts is expressed quite clearly. At the top is the Charter of Rights and Freedoms of Citizens of Quebec, followed by an array of codifications, and then there are laws and by-laws. In the province, the systematization of legislation is carried out, and codes are in force. The forms of state legal acts are decrees, regulations, administrative circulars, and others. The structure of British common law is determined by its history; it was formed within the framework of judicial procedure. Codification of legal norms in the common law system is not given the same importance as in Quebec: there are no codes in the British legislative acts structure. Despite the increase in the number of laws since the Tudor dynasty, a new stage of large-scale legislative activity, within which their systematization would have been carried out, has not come.
In Quebec’s civil law system, there are codes or laws where the rules of law governing a particular branch of law can be found. The British common law system also has laws and regulations, but, as a rule, these laws do not relate to civil or commercial law. No code in Britain regulates how a contract is formed, what are the sanctions for violations of the agreement, or what requirements are put forward to the contract. The lack of codification in Britain is made up for by a system of precedents, which are decisions of the High Court, the Court of Appeal and the Supreme Court.
Court Systems
The peculiarity of the structure of the highest level of the judiciary is another feature of Quebec’s civil law system. In Quebec, there is a central system of courts, which is of increasing importance. Municipal courts are authorized to consider and decide cases containing crimes specified in Part 28 of the Criminal Code of Canada. These offenses are criminally punishable according to the totality of the crimes specified in the sentence. The next most important instance is the Quebec Court, which is divided into three panels. The first is the Board of Civil Cases which includes the Department of Minor Claims, then follows the Board of Criminal Cases and the Board of Youth Affairs, or Juvenile Justice Board. Decisions of Quebec’s courts or state bodies, except for the Court of Appeal, with some exceptions, may be reviewed by the Supreme Court of Quebec.
The judicial system of Britain consists of the highest and lowest level of judicial bodies, without having intermediate judicial structures, as in Quebec’s civil law system. The following courts belong to the category of the highest level of judicial bodies. The Lord Chancellor heads the Supreme Court of England and Wales. It includes three independent judicial institutions: the Court of Appeal, the High Court, and the Crown Court. The lower level of the judicial bodies of England includes county courts and magistrates’ courts.
Legal Concepts
Significant differences between the British system of common and civil Quebec’s law can also be found in the field of legal concepts. Thus, in Britain, where the law was created by practicing judges, the role of legal doctrine has traditionally been underestimated. English common law has no doctrinal character, and it received significantly less attention than in Quebec. The source of British common law is works that have won respect among lawyers and have become generally accepted among the judicial class only. In the British system, the law was created by practicing judges, and the role of legal doctrine has traditionally been underestimated.
At the same time, in Quebec’s law system, there has always been the influence of legal doctrine expressed in various forms. This tendency was observed both at the early stages of the development of common law and at the present stage. Legal doctrine as a source of law has a significant impact on developing modern Quebec’s legal system. In addition, in the general system of law, the majority are adherents of the historical school of law.
The naturalness, or evolutionism, of the development of law is rightly emphasized since the legislator cannot create the norms of law at his discretion. The importance of legal customs as time-tested and stable rules of behavior is also noted. At the same time, Quebec’s civil law system is mainly based on the normative theory. Within its framework, such a defining property of law as normativity is emphasized. The attention is drawn to the need for a hierarchy of legal norms according to the degree of their legal force. Normativity in this approach is organically connected with the legal certainty of law, which significantly facilitates the ability to be guided by legal requirements due to more systematic criteria. The broad possibilities of the state to influence social development are recognized because it is the state that establishes and ensures the basic norm.
Legal Application Techniques
The distinctive features of the British common law system and Quebec’s civil one are also the application of legislation. Common law can be considered as judicial law by its nature and content. This means that the common law was initially based on the decisions of the royal Westminster courts in England and remains there. Judicial decisions on a variety of issues form the basis of common law. In Quebec’s civil law system, the leading role in law formation is assigned to the legislator, who creates general legal rules of conduct. The law enforcement officer (for example, a judge or administrative body) is only called upon to implement these prevailing norms in specific law enforcement acts accurately. At the same time, in British common law, the leading role in lawmaking is assigned to the court. It occupies a unique position in the system of state bodies.
Summary
Thus, the difference in the very nature of the law in British common and Quebec’s civil law systems is evident. The British common law system has a judicial character of the legal system, and Quebec’s civil one has a statutory character; the following differences stand out from this. In the system of sources of common law, the leading role is assigned to the precedent, and in the civil system, it is assigned to the law. The law structure also differs, particularly in the more precise division of Quebec’s civil law compared to the British common law system, which is divided only into public and private law. In addition, civil law has a more significant and stricter codification compared to the common British one. Such differences are determined by various factors, including historical origin, the prevailing legal doctrine, the uniqueness of legal institutions, and the leading sources of law and methods of their interpretation.