Chapter 2: Common Law, Civil Law, and Other Legal Systems

Page 32-44

Introduction:
-​ Canada is a bijural nation
-​ Bijural: term describing the operation of two legal systems in one jurisdiction, such as the
common law and civil law systems in Canada
-​ Common law: system of law, based on the English legal tradition, that relies on precedent
rather than on codified rules
-​ may also refer to:
1.​ decisions by courts exercising their common law jurisdiction as opposed
to their equitable jurisdiction based on broad principles of fairness; or
2.​ Case law generally as opposed to legislation
-​ All regions in Canada employ the common law system except Quebec; Quebec is also
bijural and follows civil law
-​ Civil law: system of law based on codified rules; may also refer to private law
-​ Comparative law: the study of different legal systems with at least 5 categories;
1.​ Common law
2.​ Civil law
3.​ Religious law
4.​ Customary law
5.​ Mixed or hybrid systems

Common Law:
-​ Origins of Common Law:
-​ William the Conqueror (1028-1087) introduced a political system called
feudalism
-​ Feudalism: socio-political system in medieval Europe based on relationships of
obligation and allegiance among king, nobles, and subjects, with land given to
subordinates in return for loyalty and military support
-​ This centralization of authority contributed to the formation of the common law
system
-​ Chancery: department of state established by English monarchs to assist with
legal matters and to issue writs
-​ William also introduced the expansion of the legal system through royal courts of
justice
-​ Development of a Royal Court System:
-​ King’s peace: the ideal peace and well-being of a nation that the English monarch
was obliged to uphold and protect
-​ English monarchs set up three separate royal courts of justice:
1.​ The Court of Common Pleas: decided civil and landholding disputes
2.​ The Court of King’s (or Queen’s) Bench: decided criminal matters
3.​ The Exchequer Court: decided revenue matters involving the king
-​ Features of the courts:
1.​ Their power to summon witnesses
2.​ Their use of juries rather than older modes of trial (i.e combat)
3.​ Their use of written records
4.​ Their power to enforce their judgements
-​ The Writ System:
-​ Problematic feature of the royal courts: the writ system of civil procedure
-​ Writ: court document, obtained by a plaintiff, by which the defendant was
informed that a particular type of action had been started against him
-​ Problem:
-​ Different writs were developed for specific disputes
-​ Each writ had its own formal procedure
-​ Plaintiff’s choice of writ was crucial and if they chose the wrong writ for
their cause of action an amendment was impossible
-​ No remedy would be available from the royal courts and litigants began to
appeal to the king
-​ Chancery Seperates from Common Law:
-​ Court of Chancery: english court, existing separate from common law courts,
established to provide equity
-​ Equity: discretionary legal decisions offered by judges in the Court of Chancery,
based on fairness providing relief from the rigid procedures that had evolved
under the common law courts
-​ Judicature Acts:
-​ Judicature Acts (1873): unifying the courts (the royal courts and the Court of
Chancery) under one court system
-​ The system allowed for a further right of appeal to the House of Lords
-​ Both common law (used in the royal courts) and equitable rules (used in the Court
of Chancery) could be administered under one court system
Chief Features of Common Law:
-​ Stare decisis: latin phrase (“to stand by decided matters”) referring to the common law
principle that a precedent is binding on lower courts in the same jurisdiction
-​ Use of precedents:
-​ Precedent: court decision that, under the doctrine of stare decisis, is binding on
lower courts in the same jurisdiction
-​ Binding: term used to describe a higher court's decision that a lower court in the
same jurisdiction must follow according to the principle of stare decisis
-​ Practice Statement: issued by the House of Lords in 1966
-​ Recognized that “too rigid adherence to precedent may lead to injustice in
a particular case and also unduly restrict the proper development of the
law”
-​ Gave the House of Lords the power to overrule itself and to depart from
precedent to achieve justice
-​ Ratio or ratio decidendi: latin phrase (“the reason for the decision”) referring to
the governing rule in a case or the way it was applied to the facts
-​ Distinguishable: term given to a precedent from a higher court that a lower court
decides not to follow, usually on the grounds that the facts in the case differ
-​ Arguments against a precedent that could render a precedent non-binding:
1.​ Has been overruled by an even higher court
2.​ Is no longer applicable because of changed social circumstances
3.​ Was poorly reasoned and has lost its reputation as good law
4.​ Has been reinterpreted differently by other judges
-​ Persuasive: describes a precedent that a court is persuaded to give some weight to
but it is not bound to follow, because the precedent is from another jurisdiction or
is otherwise not binding
-​ Developing New Precedents:
-​ Three important factors that a court will take into consideration:
1.​ The existence of similar cases
2.​ The approach taken in other jurisdictions
3.​ Policy considerations
-​ Adversarial System:
-​ Adversarial system: system used in common law courts, whereby the primary
responsibility for the presentation of cases lies with the opposing litigants and
their counsel, not with the judge presiding over the case
-​ Judges can ask questions to seek clarification and can do their own independent
research
-​ The judges render their decisions based on the factual and legal material before
them
 -​ Sources of Law:
-​ Bill of Rights (1689): English statute that formally ended the power of the Crown
to legislate without the consent of Parliament
-​ Jurisdictions that follow common law tradition have recognized two primary
sources of law:
1.​ Legislation
2.​ Case law (the decisions of the courts)

Civil Law:
-​ The civil code is the primary source of private law and is more important than judicial
decisions
-​ Civil code: authoritative legislative encoding of a country’s private law
-​ Judges consult the civil code and decide the cases in accordance with the code’s general
principles and laws
-​ Judicial precedents are used but do not have the same binding nature
-​ Origins of Civil Law:
-​ Ancient legal civil code: the Code of Hammurabi
-​ Civil code is an authoritative statement of rules regulating conduct in a particular
society
-​ Roman Era:
-​ Kept records of their law in the Law of the Twelve Tables
-​ Emperor Justinian produced a comprehensive codification of Roman law in
Corpus Juris Civillis (or the Justinian Code)
-​ Four main parts of the Justinian Code:
1.​ The Codex: containing a collection of imperial edicts on private law
matters
2.​ The Digest: containing Roman jurists’ commentary on these laws
3.​ The Institutes: providing a textbook portion for Roman law students
4.​ The Novels: detailing new laws applicable to this area
-​ Inquisitorial system: feature of civil law proceedings whereby trial judges actively assist
lawyers in presenting their cases and are free to call and question witnesses and to order
investigations into other evidentiary matters; contrasts with the adversarial system used in
common law courts