Categories of Law: Common and Civil Law

Introduction: Civil and Common Legal Traditions

Systems of law vary around the world. Two very common legal systems are the civil
law and common law. Often, the use of one system over another has to do with the
history of the country or region in question. For example, France uses civil law and
England uses common law. As a result, Quebec uses civil law because it was
colonized by France, while the other Canadian provinces and territories use
common law because they were colonized by England.

Systems of Law in Canada

All of the provinces and territories, except Quebec, follow the common law. The
Quebec Act of 1774 made Canada a bijural country, which means it has two types of
law. Outside of Quebec, private law is governed by the common law; in Quebec,
private law is governed by the French Code Napoléon. Both in and outside of Quebec,
public law—constitutional, administrative and criminal matters—are subject to the
common law system. Today, the Civil Code of Quebec governs private law in Quebec
by providing a comprehensive set of rules to deal with disputes between people in
the province.

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Systems of Law Outside of Canada
The civil law system is the most common system in the world. Among others, it is
the system used in most of Europe, South America, Africa, Russia and China. The
common law system, on the other hand, is prevalent in England, as well as countries
that are former colonies of the British Empire. Examples of such countries include
the United States, Australia, India, Hong Kong, Pakistan, Ghana, South Africa and
Zimbabwe.

1. Civil Law

The term ‘civil law’ can have two meanings. First, it can mean matter of private law,
such as personal injury, contract cases or other legal disputes between private
individuals. This is distinct from criminal law. Second, it can mean a legal system
based on civil code, such as the Civil Code of Quebec. Note: This is the type of civil law
being discussed here.

The civil law system is the oldest and most dominant legal system in the world, and
originates from the ancient Roman system. In a civil law system, governments create
complete codes of law. These are continuously updated to keep a recent account of
matters that can and cannot come before the courts. Therefore, government
legislation is the primary source of law in a civil law system.

Role of Judges and Juries

In civil law jurisdictions, because of the formal, written laws, judges decide cases
primarily based on the applicable code. Juries are not generally involved. Judges
may refer to prior court decisions but they do so only to achieve consistency, and
not because of a legal requirement to follow other judicial decisions. In place of
juries, civil courts allow a very inquisitorial style by their judges. The judges
question witnesses and are much more involved in the development of the evidence.

2. Common Law

The common law system dates back to the Norman Conquest in 1066. The law is
developed through court decisions rather then legislative statutes alone. While
legislation exists, it is interpreted by courts. Judges’ decisions as to the meaning and
application of legislation then become the law. Therefore, common law is flexible for
changing circumstances and cases.

Judicial decisions in the common law are called precedents. This is premised on a
concept called stare decisis (from the Latin phrase, ‘Stare decisis et non quieta
movere’, which translates into “to stand by decisions and not disturb the
undisturbed”). Precedents guide judges in making future decisions in similar cases.
Thus, courts are obliged to follow precedents and not disturb established law. If,
however, a later dispute is factually distinct from the previous case, judges can
distinguish between the cases and create a new precedent based on the new facts.

The decisions of higher courts are binding on all lower court judges. For example,
decisions by the Supreme Court of Canada (SCC) are binding on all judges in all
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lower courts in Canada. Decisions of Provincial Courts of Appeal bind all judges in
that province. Superior Court decisions bind lower trial court judges. Judges are not
bound by decisions of other judges of their own court. Those decisions are
persuasive but not binding.

When judges create new law by interpreting legislation, they can override the literal
reading of the legislation itself. However, the common law is still subject to the
Constitution Act. Judicial decisions must be consistent with the Constitution and the
Canadian Charter of Rights and Freedoms. Often, the legislature will respond to
judicial decisions by amending or enacting new law in accordance with the court
decisions or in order to ‘fill gaps’ in judge-made law.

Role of Judges and Juries

The common law system may involve both judges and juries in trials. In Canada, any
person being tried for a crime that carries a sentence of five years or more is entitled
to a trial by jury.

When both judge and jury are used, they have distinct roles in the common law trial.
Judges play the role of legal advisor, instructing the jury as to relevant laws and
ensuring that the trial is to run fairly. When the arguments have been completed, the
judge advises the jury as to the laws it must consider and how to treat the evidence
it has heard. The jury’s task is to assess the evidence and arguments and make
decisions about the facts of the case. The jury then makes the ultimate verdict as to
guilty or not guilty, and liable or not liable.

Outside of criminal law, jury trials are relatively rare in Canada. In the absence of a
jury, the judge takes on both roles—trier of fact and of law—and makes decisions
about liability, guilt, and legal remedies independently.

Justice is Blind

Regardless of the system—whether common or civil law is being used—the term

“justice is blind” refers to the goal of objectivity in the legal arena. This is based on
Lady Justice, the Roman goddess of justice, who personifies the moral force in
judicial systems in Canada and around the world. She is often depicted wearing a
blindfold, carrying scales, and holding a sword. The blindfold represents objectivity
and impartiality: justice should be meted out objectively, without fear or favour,
regardless of money, wealth, fame, power or identity.

Beyond a Reasonable Doubt

In both common and civil law systems, “beyond a reasonable doubt” is the standard
of evidence required to validate a criminal conviction. It is up to the state
(prosecutor) to prove the defendant’s guilt (one is always “innocent until proven
guilty”) to the extent that there could be no “reasonable doubt” in the mind of a
“reasonable person” that the defendant is guilty. There can be doubt but only to the
extent that it would not affect a reasonable person’s belief regarding whether or not
the defendant is guilty.
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Common Law System—A Closer Look at Categories of Law
Revisit the chart on the first page. We have thus far looked at the Common Law and
Civil Law systems (use of precedents and use of codes, respectively).

In this section, we are going to look at the Purpose and Jurisdiction sections of the
law, and define the terms associated with both. You will be studying these more in
depth throughout the course as they pertain to various case ctudies.

Purpose

Substantive Law—a law that identifies the rights and duties of a person or level of
government. For example, much of Canada’s Criminal Code consists of laws that
define the nature or substance of various crimes. The law on first-degree murder
indicates that it must be “planned and deliberate” to qualify for this type of crime.

Procedural Law—a law that outlines the methods or procedures that must be
followed in enforcing substantive laws. For example, the Criminal Code contains a
number of procedural laws that explain how arrests, bail hearings and trials must be
conducted. These laws are meant to protect an accused person’s legal rights by
ensuring that the same procedures are followed in every case.

Jurisdiction

Domestic Law—a law the governs activities within a particular country. For
example, the Firearms Act is an example of a Canadian domestic law that places
certain restrictions on gun owners. It has no application outside of Canada. If a US
citizen enters Canada and brings an unregistered handgun, they are no longer under
the jurisdiction of American law and may be charged and convicted according to
Canadian law.

International Law—a law that has jurisdiction in more than one country. An
extradition treaty is an example of an international law, where two or more
countries have signed a treaty agreeing to extradite (send back) someone charged
with a designated crime in one of the other countries.

Domestic Law

1. Private Law—the body of law that regulates disputes between individuals,

business or organizations; sometimes called civil law (NOT to be confused with
Civil Law system in Quebec)

a) Family Law—the area of private law that governs relations among members
of a family. This includes persons living together as spouses or partners,
parents, grandparents and children. For example, family law may deal with

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 separation and divorce, division of property, child custody, child support
payments.

b) Contract Law—the area of private law that governs agreements between

people or companies to purchase or provide goods and services. A contract
may be for something as simple as buying a DVD or more complex
agreements between companies and governments. If someone does not fulfill
the terms of the contract, it is known as a “breach of contract.”

c) Tort Law—the area of private law covering civil wrongs and damages that
one person or company causes to another, when the wrongs or damages
arise independently of a contractual relationship. For example, a dental
surgeon does not live up to the profession’s standard of care during an
operation; the patient can sue for malpractice or negligence.

d) Estate Law—the area of private law that regulates wills and probates, and
determines what happens to a person’s property after death.

e) Property Law—the area of private law that applies primarily to the buying,
selling and renting of land and buildings, and the use to which lands may be
put.

f) Labour and Employment Law—the area of private law that governs the
relationship between employers and employees (as well as unions). These
laws deal with issues such as minimum wage, pay equity, working conditions,
workers’ compensation, actions of unions and management during a strike,
and so on.

2. Public Law—the area of law that regulates activities between a state and its
citizens.

a) Administrative Law—the category of public law that governs relations

between people, on the one hand, and government agencies, boards and
departments, on the other. This ensures fairness in legal hearings and
reviews for all parties. For example, disputes between landlords and tenants
are resolved at tribunals; human rights commissions reviews complaints
filed by those who feel they have been discriminated against; liquor control
boards manage consumption and sale of alcoholic beverages, and grant and
revoke liquor licenses.

b) Constitutional Law—the body of written and unwritten laws that set out
how the country will be governed. This type of law sets out the distribution
of powers between the federal government and the provinces, and embodies
certain important legal principles. For example, if a law violates equality
rights that are guaranteed in the Constitution, that law could be declared
invalid (“struck down as unconstitutional”).

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c) Criminal Law—the category of public law that prohibits and punishes
behaviour that injures people, property and society as a whole. Examples of
crimes include murder, kidnapping, sexual assault, break and enter, and
theft, among others. Punishments are detailed in the Criminal Code of Canada.
Criminal laws for youths are found in the Youth Criminal Justice Act. Criminal
laws about drugs are found in the Controlled Drugs and Substances Act.

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Common and Civil Law: Discussion Questions

1. What is the main difference between common and civil law?

2. In which system is ‘precedent’ an important concept?

3. Why has Canada developed as a ‘bijural’ nation?

4. Would the common or civil law govern a personal injury case in

Saskatchewan?

5. Would the common or civil law govern a constitutional case in Quebec?

6. Which country would you expect to have a common law system—Mexico or

New Zealand?

7. Explain the concept of state decisis and its role in common law.

8. How does the trial process differ in a common law and a civil law system?

9. Discuss the potential for tension between the legislature and the courts in the
common law system.

10. Explain what is meant by the terms “Justice is blind” and “Beyond a
reasonable doubt.” Do you think these are objectives that we, as a society and
legal system, reach? Can you think of an example?

11. Imagine you are being tried for a crime. Would you prefer to have your guilt
or innocence determined by a judge or jury? Create a quadrant chart with a
pro and con for each system, and justify your conclusion.

Common Law System: A Closer Look at Categories of Law

Please make sure you are able to define these. Creating a chart (or better yet,
flashcards) may be useful. Through reading and understanding, you should be able
to be presented with a scenario and know which type of law applies to it.

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Discussion Questions: Civil and Common Law

1. What is the main difference between common and civil law?

•In civil law systems, law is made through legislation alone while in common
law, it is made through judicial decisions as well.

2. In which system is ‘precedent’ an important concept?

•Common law.

3. Why has Canada developed as a ‘bijural’ nation?

•Because it was colonized by both England and France, which had different
legal traditions.

4. Would the common or civil law govern a personal injury case in

Saskatchewan?
•Common law, because all provinces other than Quebec follow the common
law system for private and public law.

5. Would the common or civil law govern a constitutional case in Quebec?

•Common law, although Quebec generaly follows the civil law system,
constitutional cases (part of “public law”) are governed by the common law
in all provinces and territories.

6. Which country would you expect to have a common law system—Mexico or

New Zealand?
New Zealand because it has historical ties to England and remains part of the
British Commonwealth.

7. Explain the concept of state decisis and its role in common law.
Courts must respect and apply higher court decisions, particularly when on
the same issue and facts. Supreme Court decisions are binding on all lower
courts; provincial courts of appeal decisions are binding for lower provincial
courts, and so on.

8. How does the trial process differ in a common law and a civil law system?
•The role of the judge in analyzing evidence and questioning witnesses in
civil cases is more inquisitorial and active. In common law cases, judges have
more of a guiding role in the trial, providing instruction to the jury at the end
of the hearing for it to make its decision. Also, juries are not part of the civil
law trial system but often part of the common law system.

9. Discuss the potential for tension between the legislature and the courts in the
common law system.
•The courts are meant to interpret laws that are unclear or unfair, rather
than writing entirely new provisions into a statute. However, judges in the
common law system very often make decisions regarding an interpretation
of legislation. In practice, this has the effect of overriding, altering or limiting
the laws made by governments. This could also involve discussion about
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 democracy and how legislation is written by democratically-elected
individuals but is interpreted by unelected judges.

10. Imagine you are being tried for a crime. Would you prefer to have your guilt
or innocence determined by a judge or jury? Justify your answer.
•Responses will vary.