Two major traditions of law at work
- Common Law
- Civil Law
- English form of law. The common law system in Canada was developed by the
English in the middle ages. Countries that have common law include UK, Ireland,
US, India, Pakistan, Sri Lanka, South Africa, Singapore, Hong Kong, Australia,
Through adoption or imposition, British Colonialism and Imperialism ensured
spreading of common law. After decline of the empire, most countries kept the
common law system.
Developed in the roman empire, and rediscovered in Europe in the Middle Ages.
Like Common Law, Civil Law spread through colonialism and imperialism.
(French & Spanish). The scope of Civil Law in Canada is wider than that of
Common law. Exists in most of Europe, Africa, Asia.
France has always seemed to embody the civil law system. In canada to a
limited degree with Quebec.
In Canada there is a mostly common law system, with a mix of civil and common
The original difference is that historically, common law is developed on custom.
Began before there were written laws. When there were written laws, those
customs were applied by courts, written down.
Civil Law relies on a very very detailed code, relies much on traditions. Three
famous codes are: Corpus Juris Civilis, Napoleonic Code, Civil Code of
Quebec. People in civil law jurisdictions like Quebec can look to the code on any
matter for resolutions.
Civil Law - predictable.
Common Law - relies on the body of precedents that are set by judges.
Sources of Canadian Law
Number of different sources. Two basic ways in which law is made in canada.
- Politicians make laws
Federal - MPs, Senators, Queen/GG
Provincial - MPPs/MLAs, Lieutenant Governor
Municipal - Councilors Aboriginal People self government does not exist in any significant way.
- Judges make laws
Technically, judges interpret law - not make law. However, in applying the law,
the judges are interpreting the law and therefore making law.
Precedent = prior judges' decisions are binding on current and future judges. IN a
common law system, judges originally believed that they were not making laws.