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Three legal traditions.

When the judges in Canada's highest court make a decision on a matter before them, they may draw on the three different traditions of law that Canada inherited when it was created in 1867. When the European colonizers claimed the North American continent for their various monarchs, they found the land already inhabited by ingenous societies with their own social structure, culture, and laws. English-speaking colonizers brought with them their own legal tradition, the common law. This body of law had evolved from decisions made by the English royal courts of justice since the Norman Conquest (1066) and applies in most English-speaking countries.

Common law is unenactcd, traditional law, often called case law. This is because it is not collected into a single comprehensive and authoritative code, but drawn instead from the decisions that judges have made in the cases brought before them by individuals. Each time a new situation arises, lawyers and judges look to past, similar cases to guide them in their arguments or judgements. This common-law tradition was imposed first on the indigenous peoples, and then, less thoroughly, on the French-speaking inhabitants of what became British North America.

In Quebec, the common law gave way in some areas to French civil law (le droit civil). The fundamental difference between the two traditions of law lies in the authority they look to in making decisions. Le droit civil was based on ancient Roman law and French custom, and recorded in a comprehensive Civil Code enacted in Quebec in 1857. The Code contains a general statement of the rules, principles, and ideals that guided the province's private law in its decisions. The Code covers matters such as the status of individuals, relations within families, property rights, wills, contracts, partnerships, and claims for the remedy of (non-criminal) wrongs done by one individual against another. Common law deals with the same matters, but uses case law and legislation as its source.

The Quebec Civil Code as originally enacted reflected the basic values of 19th century Quebec. As Quebec society changed, sections were added and the language and organization revised. In 1991 a new Code replaced the much-amended old one.

In both civil-code and common-law provinces, judges continued to recognize some rights based on the legal traditions of the indigenous peoples, particularly in determining inheritance rights of children whose European fathers had married aboriginal women. In the last quarter-century, aboriginal peoples have been arguing for a more general acceptance of the validity of their legal traditions. They also want recognition of rights to land and access to natural resources that stem from their position as prior occupiers of the continent. Their arguments are political as well as legal, and if they can negotiate a political acceptance of their demands for native self-government, they can begin the difficult process of constructing a parallel legal system. This system would reflect a different understanding of property rights, family relationships, and appropriate community responses to actions that harm individuals or the community.
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Title Annotation:indigenous law, civil law and the common law
Publication:Canada and the World Backgrounder
Date:Dec 1, 1995
Previous Article:Canada's legal tradition.
Next Article:Principles and process.

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