Legal Cultures in Canada – Lecture Notes
Law in Society: Foundational Ideas
Law involves coercion and direction of behavior in given circumstances where multiple actions are possible.
Key theorists and views on coercion:
Max Weber: law is the authorized imposition of physical or psychological coercion to direct behavior or avenge wrongdoing.
Karl Marx: coercion applied to maintain relationships of exploitation.
W. Black: coercion used to ensure conformity or to avenge violations.
These ideas help frame how law functions within society and its legitimating authority.
Core Concepts: Hoebel’s Law Jobs and Social Norms
Hoebel’s social-norm view: a social norm becomes legal when its neglect or infraction is regularly met, in threat or in fact, by the application of physical force by an entity with recognized social privilege to act.
Definition: legality arises from enforcement and coercive response by those authorized to act.
All legal systems perform 4 essential ‘law jobs’: items
Define relationships among members of society
Allocate authority and the right to exercise physical coercion as a socially-recognized privilege
Disposition of trouble cases as they arise
Adapt to social change and redefine relationships accordingly
Notable Case: Wolf Lies Down and Christie’s “Conflicts as Property”
Wolf Lies Down illustrates how law performs its jobs in Cheyenne law and legal system.
Nils Christie’s view: conflicts are treated as property; disputes are moved out of ordinary daily life into formal courts.
Practical implications:
Courts are located outside daily life; courthouses are complex and hard to navigate.
Parties become peripheral to legal proceedings; the legal system can “steal” disputes from disputants.
This Week: Readings and Authors (Course Reader 2)
Readings (a–d):
Russell, “The Environment of Canada’s Judicial System”
L’Heureux-Dube, “By Reason of Authority or By Authority of Reason”
Bouchard & Taylor, “Societal Norms Offer a Frame of Reference”
Borrows, “Living Law on a Living Earth”
Russell & the Environment of Canadian Law
Three predominant environmental influences on Canadian law and the legal system: factors
Socioeconomic Development
Political Beliefs and Ideology
The Culture of the Legal System
Socioeconomic Development
Impacts are not uniform; development reshapes social relationships and conflict resolution.
Urbanization and industrialization alter relationships and thus influence conflicts and their resolution.
Courts play a role, but other dispute resolution mechanisms also participate in resolving disputes.
Political Beliefs and Ideology
Liberal ideas of equality, human rights, and dignity influence access to justice (e.g., legal aid), law, and the legal system.
Growing distrust of government as the guardian of rights shifts some responsibilities to the courts.
The Culture of the Legal System
Canada’s legal culture has roots in two traditions:
British Common Law
French Civil Law
The most influential Common Law features in Canada: centrality of the judiciary and the power of lawyers.
Indigenous Law and the Living Law Concept
Burrows: Living Law on a Living Earth outlines traditional Indigenous law within Canadian law.
Today, revitalization of Indigenous processes is seen in:
Restorative approaches
Rest sentencing rules
Indigenous Peoples Courts
L’Heureux-Dube: Convergence and Divergence of Civil and Common Law
By Reason of Authority or by Authority of Reason explains where French (civil law) and British (common law) legal cultures converge and differ.
Canadian legal culture uniquely includes both traditions.
How Canada Obtained a Mixed System
French Civil Law tradition came with French influence.
British Common Law tradition arrived via British influence.
Post-1760 arrangement allowed New France to retain language, religion, and laws.
The Mixed System Today: Quebec and the Supreme Court
Quebec maintains a mixed system (civil and common law); Canada overall uses a common law system for much of its jurisprudence.
Problem: Supreme Court of Canada is a common law court, raising questions about reconciling different precedent approaches.
Central concept: Stare Decisis: “to stand by the decided case.”
Precedent and Legal Traditions: Common Law vs Civil Law
Common Law Tradition:
Law resides in cases (precedent) and in the accumulation of law through judicial interpretation.
Cases decided largely by reference to precedent; you cannot disregard precedent and must distinguish cases.
Key role for case law; emphasis on judicial reasoning and interpretation.
Civil Law Tradition:
Civil code is the foundation and primary organizing source of law.
Cases decided by reference to the letter and spirit of the law.
Judges have more freedom to disregard precedent; legal scholarship is central.
The Collision and Reconciliation of Civil and Common Law
The two traditions collide in Quebec and at the Supreme Court.
Efforts to reconcile civil and common law include notable cases like Canadian Pacific Railway v. Robinson, where the SCC sought to unify private law by importing common law principles into civil law domains.
The Desrosiers Case and the Question of Cross-Law Reference
Desrosiers: The civil law is a complete system that must be interpreted by its own rules; if legal principles align, courts may resort to English law to interpret French civil law, but French jurisprudence monuments should also be used to illuminate English law principles.
This reflects ongoing cross-law dialogue and the potential for cross-referencing between civil and common law traditions.
Stare Decisis in Quebec: Practical Realities
Two factors supporting Stare Decisis in Quebec:
The judiciary in Quebec administers a ‘mixed system’
The Quebec judiciary is structured similarly to those outside Quebec, making overlap inevitable
Question: Are there more similarities than differences between Quebec and other provinces?
Adjustment & Accommodation in Rights Disputes
Bouchard & Taylor argue that conflict resolution over rights is often a balancing act.
Best outcomes are compromises that minimize infringement of all parties’ rights.
This reflects a pragmatic approach to multicultural and rights-based tensions in Canadian society.
The Big Picture: Culture, Law, and Relevance
Law and culture are deeply intertwined; culture shapes ideas of right, wrong, and justice.
Canada is unique for housing two of the world’s oldest legal systems: Civil Law (France/Quebec) and Common Law (UK/Canada).
Important distinction between civil and common law systems: the role of precedent.
The Supreme Court of Canada serves as the court of last resort for both civil and common law matters.
Key Terms and Concepts (Recap)
Coercion: the lawful use of force or authority to compel action or compliance.
Law jobs (Hoebel): establish social relations, authorize coercion, disposition of disputes, adapt to social change.
Social norm becoming legal: enforcement by force by those authorized to act.
Precedent: prior judicial rulings that guide future cases.
Distinguish: a method to avoid applying precedent to a case with different facts.
Stare Decisis: the principle of standing by decided cases.
Civil Law: codified system (civil code) with focus on letter and spirit of the law; judges may disregard precedent; scholarship is central.
Common Law: case-based system with emphasis on precedent and judicial interpretation; judges rely on prior decisions.
Mixed System: jurisdictions combining elements of civil and common law (notably in Quebec).
Indigenous Law: traditional legal practices being revitalized within the Canadian framework (restorative justice, sentencing rules, Indigenous Peoples Courts).
Readings and Resources (For Study)
Russell, “The Environment of Canada’s Judicial System”
L’Heureux-Dube, “By Reason of Authority or By Authority of Reason”
Bouchard & Taylor, “Societal Norms Offer a Frame of Reference”
Borrows, “Living Law on a Living Earth”
Notable cases: Canadian Pacific Railway v. Robinson; Desrosiers case; general discussions on Stare Decisis in Quebec
Connections to Wider Themes (Optional for Exam Prep)
How economic development shapes law and access to justice.
The tension between liberal rights and political distrust, and how courts mediate that tension.
The role of culture in shaping legal norms and the acceptance of restorative justice in Indigenous communities.
The practical challenges of applying two different legal traditions within one national framework.