Some thoughts on bijuralism in Canada and the world

PART III - Forms of Coexistence of the Two Legal Traditions in Systems in Other Parts of the World

There are many instances of bijuralism around the world. Nearly one hundred countries are governed by a combination of two or even more systems of law. Bijuralism is most often the result of the juxtaposition of a legal system—typically civil law or common law—with a pre-existing law such as customary law, Islamic law or Talmudic law. The combination of civil law/common law is much rarer and found in scarcely fifteen states. The examples which follow will deal with some of these.[33]

The United Kingdom[34] and laws applicable in Scotland

England and Scotland were autonomous kingdoms until James VI succeeded to the throne of England in 1603. Starting in that year, they shared the same head of state, but remained two separate kingdoms. Unification was achieved in 1707 by the Union with Scotland Act and the Union with England Act. The creation of the new kingdom, Great Britain, with its own Parliament, resulted in the disappearance of the English and Scottish kingdoms and their parliaments. Despite the Union, Scotland retained its private law and courts, but the House of Lords, consisting mainly of judges trained in the common law, became the court of highest jurisdiction in civil matters. The disappearance of Scotland's Parliament gave the British Parliament the power to amend Scottish private law, which power was to be exercised "for the evident utility of the subjects within Scotland".

The United Kingdom's legal system in this context is bijural: the English common law and the Scottish civil law coexist because The Union Act provided that Scotland would retain its private law.

In 1998, Parliament passed The Scotland Act 1998, which established a Scottish Parliament with jurisdiction in a number of matters.[35] The Scottish Parliament's jurisdiction is not exclusive. Other matters such as defence, social security, foreign policy, immigration and citizenship and unemployment are solely under the jurisdiction of the Parliament of the United Kingdom.

In Scotland, the laws may be of local origin (United Kingdom, Scotland) or supranational origin (Europe). Most of the laws that apply in Scotland are passed by the Parliament of the United Kingdom. Scottish statutes in effect include The Union Act (1707), Scottish statutes prior to Union and those passed by the Scottish Parliament since 1999.

The legislative process frequently accommodates the different legal traditions of England and Scotland by means of a number of methods:

  • the use of a neutral legal vocabulary, one not based in either tradition (e.g., the expression "devolution by law" used in section 2 of the Succession Duty Act is a purely descriptive expression of the situation contemplated);
  • the use of the Scottish legal term following a common law term (e.g., Partnership Act, Bill of Exchange Act);
  • the adaptation of statutes by specific provisions such as section 7 of the Damages Act 1996: "In the application of this Act to Scotland 'personal injury' has the meaning given by subsection 10(1) of the Damages (Scotland) Act 1976" and section 17 of the Defamation Act 1996: "In this Act as it applies to proceedings in Scotland 'costs' means expenses; and 'plaintiff' and 'defendant' mean pursuer and defender."

What of the principle of complementarity in the United Kingdom? Although the courts acknowledge that the laws are intended to be applicable in two separate systems of law, they interpret the law on the basis of the meaning attributed to the legal terms in the tradition from which they originate. They then apply the statute analogously to the other tradition.[36] The interaction of the civil law and common law thus gives rise to the dissociation of these two systems rather than their complementarity.[37]

Thus it is said that the Scottish law is a civil law imbued with Roman law and the result of a lengthy evolution. Its principles have been drawn from numerous sources (canon law, lex mercatoria, allodial law, Celtic law and feudal law). Roman law has exercised a decisive influence comparable to that of English law. Following unification, a number of common law-based solutions were incorporated in Scottish law. Although the House of Lords did not deliberately anglicize Scottish law, its role in this regard cannot be underestimated: it at times applied English solutions to Scottish problems, thus disregarding the principles of that law. The sources of Scottish law are custom and usage, statutes, case law and doctrine. Certain doctrinal texts dating from the late XVIIth and XVIIIth Centuries are considered as formal sources of law and are the work of "institutional writers" (Stair, Erskin, Bell and Hume).

United States and laws applicable in Louisiana

The United States is a country with a federal constitution. The states have preserved their legislative powers, the American government enjoying only limited power, legislating only to the extent that the states have delegated that power to it. This is provided for by the Tenth amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.[38]

Each state has the power to establish the rules of private law that it deems appropriate, hence the plurality of legal systems which makes the United States a bijural country. The private law includes the civil law but not necessarily commercial law since Article I, Section 8 provides:

The Congress shall have Power […] To regulate Commerce with foreign Nations, and among the several States […].[39]

Most states adopted the common law, but Louisiana preserved the civil law. From the time it was colonised, the territory that would later become Louisiana was subject to French law, namely the Coutume de Paris. In 1762, Spain acquired Louisiana and imposed its law in 1769. That left the greatest mark on Louisiana because, although Spain ceded the territory back to France in 1800, France allowed Spanish law to remain in effect. Similarly, upon the sale of Louisiana to the United States in 1803, Congress did not impose the common law on the territory, even though it had the power to do so at the time. Congress lost this power when Louisiana became a state in 1812.

At its inception, the state of Louisiana provided in its constitution that it would never be permitted to adopt unwritten law, thus excluding the common law.[40] This law was "codified" in 1808, although reference is usually made to the Civil Code of 1825, since many additions and amendments were made to the Code at that time.[41] The Civil Code was revised in 1870 and 1987.[42]

Does the principle of complementarity exist in the United States? The American legal system consists of courts that apply federal law and other courts under the jurisdiction of each of the states that apply state law.[43] Except in constitutional matters, cases may be brought before a federal court or a state jurisdiction. Among other things, the system is intended to ensure standard administration and interpretation of federal law throughout the land.

When the federal courts are called upon to interpret a state statute, and a question pertaining to a state law arises in a matter of federal law, they must adopt the interpretation of the courts of that state.[44] This is what the U.S. Supreme Court held in Erie Railroad Co. v. Tompkins:[45]

Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the state. And whether the law of the state shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern. There is no federal common law. Congress has no power to declare substantive rules of common law applicable in a state whether they be local in their nature or "general", be they commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts.

A federal statute may moreover contain provisions contrary to the private law of the state, whereas the federal law applies as though the state law did not exist.[46] As a result it was held that a retirement pension paid to a soldier was not part of the community of property, contrary to the prescriptions of Louisiana law.[47]

Europe and the autonomy of European law

In 1951, the treaty of the European Coal and Steel Community (ECSC)[48] laid the groundwork for a new Europe by creating a "High Authority", a Parliamentary Assembly, a Council of Ministers, a Court of Justice and an Advisory Committee. It was followed by the treaty of the European Economic Community (EEC),[49] which provided inter alia for the elimination of customs duties between member states, the establishment of a common external customs tariff, introduction of a common agriculture and transportation policy, creation of a European Social Fund, institution of a European Investment Bank and development of closer relations between member states. The guiding principles of the EEC treaty provided the framework for the legislative activity of the Community's institutions—common agricultural policy,[50] transportation policy[51] and common trade policy[52]. The main objectives of the common market are to permit the free movement of goods, workers, businesses, services and capital.

In 1986, the European countries entered into a new treaty, the Single European Act (SEA),[53] the main objectives of which are to enhance the role of Europe's Parliament to correct the democratic deficit in the community's decision-making system and to enhance the Council's decision-making ability. To do so, decision-making procedures were expedited and European institutions were granted new powers in areas such as domestic markets, social policy, economic and social cohesion, research and technological development and the environment. One of Europe's main new projects, described in Title VI of the Maastricht Treaty of 1992, is the construction of an "Area of freedom, security and justice". Title IV of the Amsterdam Treaty of 1997 gave concrete form to this domain by setting out new legislative options. Common security and police and judicial cooperation remain under the Union's jurisdiction,[54] while questions of justice and internal affairs[55] are under that of the European communities.[56]

The European Community is in the process of shaping a common law in which English common law and French-style civil law play an important role. In the economic field, the European Community is establishing itself as a source of specific, autonomous law with a hierarchy of its texts (regulations, directives, recommendations, notices and communications) and particularly with the role of the Court of Justice of the Communities whose well-settled case law affirms the primacy of Community law over national laws. The Community strives moreover to create favourable conditions for the integrated development, through harmonization [57] of national legislation or by creation of a community law. Harmonization is done on the basis of directives which establish the standards which member states must incorporate in their national law. The directives may concern a host of subjects, in particular agriculture, transportation, internal trade and consumer protection. The creation of a community law directly applicable in the member states is being effected by the adoption of regulations.[58]

The main object of the harmonization of national legislation is not private law but rather standards specific to the free movement of goods, services, people and capital (i.e., standards for product manufacturing, packaging, transportation, service standards and tariff deregulation). The Community law thus has a much greater impact in the field on regulatory or administrative law. However, private law may be directly concerned. In other cases, it is simply drawn on for the implementation of regulations or directives, as is the case in the field of transportation with respect to the application of the principles of civil liability to accidents.

European standards do not emanate from a state body but rather from an organization both supra-governmental and intergovernmental. The division of powers among the member states and the community is governed by the principle of subsidiarity. This principle implies that the member states retain their power in fields where they are more effective, and the powers they cannot satisfactorily exercise fall to the Community.

In comparing the European situation to that prevailing in Canada, it must first be emphasized that the nature of standards is quite different. However, regulations may be likened to federal statutes in that they are directly applicable in each of the countries. Unlike the statutes of the Canadian provinces, the legislative, regulatory and administrative provisions of the member states are lawful only to the extent the regulations provide or that is required for their effective application. In addition, the implementation measures taken by member states cannot in any case alter or supplement the scope and useful effect of a regulation.[59]

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