Some thoughts on bijuralism
in Canada and the world

By Marie-France Séguin
Special Counsel,
Civil Law and Corporate
Management Sector,
Office of the Associate Deputy Minister
Department of Justice Canada

By Marie-Claude Gervais
Legal Counsel,
Office of La Francophonie,
Civil Law and
Corporate Management Sector,
Department of Justice Canada

General Introduction

A society produces various types of discourse and translates them into reality. In this way, it learns to know itself and to evolve. It finds words, signs and symbols for those realities. Law plays a role in this process, and that role is defined by its relationship to methods of reasoning and regulation and through its identification with values that ensure its coherence.

Juridical cognition that is manifested through diverse methods of legislation is of course a matter of interest to more than one discipline. And an understanding of more than one legal system in a single community raises even greater challenges to the extent that the coexisting systems have their own identity. However, the linear view one might be tempted to take of the manner in which legal traditions have developed may be convenient in this context, but incorrect. There has been too great a confluence of ideas shaping the history of these traditions for anyone to disregard their similarities and mutual ties. This will be of much greater interest to sociologists and legal historians. We are neither. We are not interested in legal agents or socio-legal representations, but in the meaningful relationships between the various types of legal discourse, that is to say, between legal traditions. It is the areas where these forms of discourse and traditions are superimposed on one another and appropriate and complement each other that lead us to think of bijuralism in its proper place, for which globalization now forces us to set aside multi-dimensional spaces, common areas and fields where ideas coexist or are assimilated.

Bijuralism is defined as the coexistence of two legal traditions within a single state. Since the common law and civil law coexist in Canada in both official languages, Canada is said to be a bijural country [1].

Although many countries are also governed by a combination of two or more systems of law, the combination of civil and common law is much rarer. It is found in scarcely fifteen states and the face of bijuralism differs in each of those countries.

In a presentation entitled Le bijuridisme au Canada, the Honourable Mr. Justice Michel Bastarache of the Supreme Court of Canada noted: [translation] "There are relatively few countries where two fundamentally different legal systems coexist. Canada is one of these countries. 'Bijuralism in Canada' means the coexistence of the English common law and French civil law traditions within a federal state." [2]

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