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20 LawNow [195] (1995-1996)
The Civil Code of Quebec: A Distinct Legal System

handle is hein.journals/lanow20 and id is 195 raw text is: 





The Civil Code of Quebec
A Distinct Legal System
Barbara Billingsley

For years now, Canadians have been involved in an ongoing debate over whether the Province of
Quebec should be recognized as a distinct society by the rest of the country. The arguments raised
in this debate have focused attention primarily on Quebec's history, its culture, and, of course, its
language. A point which seems to have received relatively little notice, however, is that, even as
part of Canada, Quebec continues to maintain a unique system of private law. This system of law is
unlike any other anywhere in the country and is represented by and outlined in the Civil Code of
Quebec. This article focuses attention on this Civil Code in order to shed light on why this unique
document exists in Canada and how this document makes Quebec's legal system different from the
legal systems in the other Canadian jurisdictions.

A Brief History

The origins of the Civil Code of Quebec are found in the colonization of Canada by France. From
1534-1760, the Canadian territory was in the possession of France, so the colony had a legal system
based on the French civil law. In 1760, the British conquest made the Canadian colonists English
subjects; however, the French settlers struggled to maintain their cultural heritage, including their
civil law system, in spite of the British rule. Ultimately, the French settlers were successful in this
endeavour, resulting in a unique civil law system for the territory that later became Lower Canada
and, finally, the province of Quebec.

Originally, the principles forming this civil law system were not written down. By the early part of
the nineteenth century, however, there was a growing concern that the substantive contents of the
civil law were deteriorating through the passage of time and by the presence of English influences.
Accordingly, the idea arose to set out the civil law in a written code modelled after the Napoleonic
Code or the Civil Code of France. This idea became reality when the civil law of present day
Quebec was first codified in the Civil Code of Lower Canada which came into force on August 1,
1866. This document was, recently, substantially reformed and was replaced by the Civil Code of
Quebec, passed in 1991 and proclaimed into force on January 1, 1994.

The Civil Code vs. The Common Law

The French civil law system which inspired the Civil Code of Quebec differs substantially from the
common law system of England which forms the basis of the private law system in the other
Canadian provinces. Both systems, of course, are designed to instill some sense of order and justice
in the resolution of legal problems. Nevertheless, the two systems have a fundamental difference of
philosophy as to how this goal is best achieved.

The English system of common law is based on the notion that justice in civil matters is best
achieved on a case by case basis. In other words, what constitutes the most just resolution of a
conflict depends upon the facts of each case. Nevertheless, recognizing that justice requires similar
cases to be treated in a similar fashion, the English system employs the principles of precedent
LAWNOW.w                              February/March 1996
                             This article is copyright D 1995 by LawNow
                 Permission to reproduce material from LawNow may be granted on request.

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