The Feature of Droit Commun in the Disposition Preliminaire of the Civil Code of Quebec: A Clue to the Bijurality of the Legal System?

Chapter 10
The Feature of Droit Commun in the Disposition Preliminaire of the Civil Code of Quebec: A Clue to the Bijurality of the Legal System?

Biagio Andò


Comparative legal studies have developed numerous theories – and correlatively a quite extensive vocabulary – in order to delve into the fundamental issue of the diffusion of law. Words such as ‘transplantation’, ‘reception’ and/or ‘transposition’ have become widespread terms in the scholarly debate, each underlying a different point of view on how the circulation of law may occur and has occurred throughout history.

Rather than proposing a new general theoretical approach to this phenomenon, this chapter discusses a specific case of diffusion, in which civil and common law traditions lie at the roots of the system – Quebec. Its bijural1 foundations will be investigated through the concept of droit commun, acknowledged from the Disposition Préliminaire2 of the Civil Code of Quebec (from now onwards CCQ). In particular, this concept will be explored through the perceptions and conceptualisations of Quebec legal scholars.

That a comparative law survey of a legal system cannot be reduced to its legal formant has become a common place. A fortiori this seems to be true for bijural systems, whose highly complex foundations require an in-depth examination of the crucial interactions among the socio-cultural and legal layers.

The scrutiny of droit commun seems to be particularly suited to that aim, due to the fact that the set of meanings framed by scholars can be thoroughly assessed only by having regard to the interplay between the socio-cultural layer of the system and the legal one. It also makes it possible to inspect the issue – deemed by this writer to be pivotal in legal studies on bijural systems – of the paths followed by the latter to drive legal change. A key role for their understanding is played by the weight of past law on the present appearance of the system, either affecting the interpretation of legal rules in force or filling the interstices of the system in cases when a rule is not expressly provided.

The widely agreed statement – even in the field of legal studies – that the present has to be understood by looking at the past is particularly meaningful for Quebec, since some attitudes developed from the legal community and dating back to the time when the legal system’s foundations were laid are still at work, showing therefore a high degree of endurance. Far from just displaying a significant role on a historical footing, they often constitute a set of underlying (not always overt) assumptions on which the legal system is grounded at present. In Quebec, the process of the codification of private law – which led to the enactment of two Civil Codes in 1866 (the Lower Canada Civil Code) and in 1994 (the CCQ) – is an interesting outpost from which to assess the dialectic relationship between past and present (law). The nineteenth century European version of the concept of codification of law, grounded on the idea of a complete recasting of law, does not seem to have been engrafted in the Quebec soil.

Finally, this survey reveals as useful two general issues relevant at the level of comparative law methodology which, adapted to this case study, can be cast in these terms: is the terminology currently used in the ‘diffusion of law’ debate able to shed light on the ways in which common and civil law traditions have interacted, moulding the Quebec legal system? Which directions can be drawn from the Quebec case study at the more general level of the phenomenon of circulation of law?

Droit Commun in theDisposition Préliminaire

The introduction of droit commun as a main and general3 feature in the Disposition Préliminaire is the result of a long process, started in 1982 with the Projet de loi 106, providing for the insertion of a Disposition Préliminaire into the Civil Code. It is expressly provided that this latter: ‘régit, sauf les dispositions particulières de la loi, les personnes qui se trouvent au Québec, l’exercice de leurs droits, leurs rapports entre elles ainsi que leurs biens’,4 and ‘est constitué d’un ensemble de règles qui, en toutes matières auxquelles se rapportent l’esprit, la lettre ou l’objet de ses dispositions, établit le droit et constitue le fondement des autre lois’.5 Furthermore, this provision stated that, ‘en cas de silence ou d’insuffisance’ [in case of silence or deficiency] of the codal provisions, regard must be had to the ‘jurisprudence constante’ [constant judge-made law], to ‘doctrine reçue’ [received doctrine], to ‘principes généraux du droit ainsi que parfois de la coutume et des usages’.6

In 1984 some amendments were introduced to the 1982 draft version explicitly concerning private law, in which the Civil Code displays this ‘foundational’ role, and qualifying in a more accurate way the relation between the Civil Code and the other statutes dealing with private law matters:

Le code civil du Québec régit, en harmonie avec la Charte des droits et libertés de la personne, les principes généraux du droit et le droit international privé, les personnes, l’exercice des droits civiles, les rapports entre les personnes ainsi que les biens. Le code est constitué d’un ensemble de règles qui, en toutes matières auxquelles se rapportent la lettre, l’esprit ou l’objet de ses dispositions, établit, en termes exprès ou par implication, le droit privé. En ces matières, il fonde les autre lois qui peuvent elles-mêmes ajouter au code ou y déroger.7

In 1986, the reference to private law was replaced eventually from droit commun.8

Scholars welcomed the introduction of a Disposition Préliminaire for its ‘effet de codification’ [effect of codification of law], that is, for its being a ‘disposition d’orientation du système juridique, plutôt qu’immédiatement normative’.9

In the draft version of 1986, droit commun was defined as ‘l’ensemble des principes et des règles qui s’appliquent à tous les sujets de droit à moins qu’il n’y ait des règles exorbitantes de ce droit commun prévues dans les lois ou dans les règles de common law exclusivement applicable à la couronne ou aux corporations publiques’.10

The Disposition Préliminaire now in force reads:

Le code civil du Québec régit, en harmonie avec la Charte des droits et libertés de la personne et les principes généraux du droit, les personnes, les rapports entre les personnes, ainsi que les biens. Le code est constitué d’un ensemble de règles qui, en toutes matières auxquelles se rapportent la lettre, l’esprit ou l’objet de ses dispositions, établit, en termes exprès ou de façon implicite, le droit commun. En ces matières, il constitue le fondement des autres lois qui peuvent elles-mêmes ajouter au code ou y déroger.11

However, no definition of droit commun is provided in the final version of the Civil Code currently in force.

What one may infer from a first glance at the text of the Disposition is that courts have the power broadly to interpret and apply the codal provisions, not being restricted to the literal approach as the only interpretative technique available in the construction of those rules.12 It would be inconsistent with the express acknowledgement of the Civil Code as a body of law comprising ‘règles qui, en toutes matières auxquelles se rapportent la lettre, l’esprit ou l’objet de ses dispositions, établit, en termes exprès ou de façon implicite, le droit commun’ and with its role of ‘fondement des autres lois13 to opt for a narrow judicial interpretative approach to those rules. The letter of the provision is clear on one of the major and controversial issues under the older code, that of the boundaries within which courts are required to fulfil their task of interpretation.

More controversial issues, calling into play the substance of the droit commun, cannot be solved through a literal reading of the provision: is the Civil Code just the core or the exclusive source of droit commun? 14 Is droit commun only relevant to private law or does it include also public law? These are questions the answers to which require us to go beyond the level of positive law, strictly interwoven with those historical events which have been landmarks in Quebec’s legal history and which will be considered in the fourth part of this chapter. In the next part, an overview of the main propositions developed from legal doctrine on the concept of droit commun will be examined.

The Droit Commun Clause in the Eyes of Quebec Doctrine

In spite of the silence of the legislature (or, more probably, because of this silence), a significant literature exists on the issue of the meaning (and reach) of the clause of droit commun.

A starting point for understanding the doctrinal debate may be taken from Brierley’s remarks in 1989.15 His thesis is that there are several accepted understandings of droit commun at work in Quebec. The first one would regard those ‘principles, variously described as universal, general or super-eminent’ that would work as implicit norms.16 These are general arguments drawn from the sphere of morality, religion, or so-called ‘common sense’, or legal maxims used by courts to explain the patterns of reasoning followed to reach a decision. In sum, droit commun includes everything that makes up the reasoning leading to the decision that is not drawn from a legal text and reveals essential modes of thought. This droit commun would not change through time – hence it has to be considered ‘ahistorical’ – and it would be – according to Brierley – ‘openly acknowledged by the civil code itself as being distinct from both its own explicit enactment and from its own historical derivation’.17

In a second meaning, the locution droit commun encompasses the law in force prior to the enactment of the Civil Code, namely the ancien droit français, the English law that has penetrated the realm of civil law, the Roman law. These rules or principles may be found in statutes, usages and customs and judicial decisions. Unlike the previously discussed accepted meaning, this second would have historical roots. Art. 2712 now in force would acknowledge this droit commun, insofar as it provides that:

the laws in force at the time of the coming into effect of this code are abrogated in all cases: in which there is a provision herein having expressly or impliedly that effect; in which such laws are contrary to or inconsistent with any provision herein contained; in which express provision herein made upon the particular matter to which such laws relate.18

Understood in these two meanings, droit commun would not necessarily depend on an express acknowledgement in the Civil Code; it would be a ‘pre-normative’ notion19 able to affect the operation of the code. The ‘silent’ (since it is not officially acknowledged by the legislature) operation of this concept – and of its reach within the written legal system even under the Civil Code of 1866 – is evidenced by an article dating back to the 1920s.20 Its author, Rivard, shows that its existence is not controversial, yet it is difficult to define, precisely for ‘cette expression […] d’un emploi fréquent […] n’a trop souvent […] qu’un sens plutôt vague’.21 It cannot be defined in absolute, but only in relation (in opposition) to what is particular, exceptional, therefore to those laws that cannot be applied to everybody. In Rivard’s view, droit commun has to be seen as one of the possible expressions of national law, as the law applicable when (in any case in which) any rule enacted by the legislature cannot be found. Under the old code, droit commun had thus a ‘fonction utilitaire’ [practical function] – that of filling the gaps in special laws dealing with the private law field, and this was even more so, after the Confederation came to existence, for federal laws aimed at ruling private law.22

A third, ‘legislative-bound’ concept of droit commun that results from legislative enactments of a ‘general and permanent character’ concerning the regulation of the individual person and his relations with other individuals has since been unravelled. Brierley writes that, ‘The code in this regard has a role that is the functional equivalent of the accumulated work of the traditional (i.e., judicially created) English common law in the shaping of private law concepts and relations’.23 A significant example would be the Civil Code, inasmuch as it lays down the basic conceptual taxonomies of private law. The abovementioned Disposition Préliminaire of the new code – enacted two years after Brierley’s essay – has to be understood in this third sense.24

These manifold understandings of droit commun would demonstrate its ‘pluralistic’ character, which however does not deny the possibility of its ‘unitary’ conception. It would be nothing ‘more than a technique by which to acknowledge the existence of a particular set of “sources of law” […] found to be commonly applicable in the event that no derogation to them has been made by another set of more specific norms’.25 Through the identification of the different layers constituting the concept of droit commun, Brierley aims at giving a general view of Quebec law as ‘open’ towards outside influences.

Quite interestingly, there are no significant differences between the way Brierley frames the issue of droit commun in 1989 and Rivard’s approach dating back to 1924. The conception of droit commun supported by both is that of a set of norms whose existence may lie outside written law and whose function is that of supplementing statutes.

Glenn places the expression droit commun in a wider conceptual framework. Whereas Rivard’s and Brierley’s survey is confined to the Quebec legal system, Glenn deals with the historical patterns of droit commun in Europe and North America.26 His assumption is that not one single droit commun but several jura communia may exist within a given legal system at the same time or in subsequent periods, each displaying a different function. A diachronic survey of the circumstantial meanings in which droit commun has been used in different cultures brings to light that under Roman law it was conceived as general law, either in the form of natural law or that of jus civile, conceived as ‘le droit qui s’applique en l’absence d’exceptions […] que ce même droit formule’.27 This general law had a mandatory character. There was only one set of general rules, compulsory for everybody, applying to every case unless exceptions to its operation were provided.

In the medieval age, the notion of droit commun inherited from Roman law underwent an evolution. Being deprived of a general and mandatory character, it only applied when in a given territory other more specific laws, called by Glenn ‘droits particuliers’ [particular laws], ‘prioritaires […] dans leur zone d’influence’,28 might not be found. Several iura of a different nature thus coexisted.29

Glenn argues that droit commun not only has historical importance, but is an influential concept even at the present time, as demonstrated by the current European debate. It would not necessarily be part of State law, since the dimension of State law would be but one of its possible expressions.30 The case of the ‘droit commun de la francophonie31 is taken as evidence of this assumption. This ‘droit de la francophonie’ would have been carried out in Quebec by colonisers. The absence of a political power able to set a uniform and mandatory law would explain the reasons for the operation of a droit commun in a supplementary way. Its application, not being the result of an imposition by the political power, may be explained as the consequence of its persuasive character.32 The 1866 Lower Canada Civil Code would not have caused the vanishing of droit commun which lurked behind it, not necessarily transfused into formal, positive law rules, but powerful enough to drive the application of legal rules. This conclusion is substantially shared by those who identify two aims underlying the Civil Code: on the one hand, the need for the rationalisation of the legal sources; on the other, the acknowledgement of a universalist conception consisting of an ongoing dialogue between the two ‘souls’ of the legal system. David Howes invokes the example of the explanation by the Reporters of Art. 1706 as paradigmatic of this conception: this provision ‘declares a rule derived from Roman law, and although not found in the Code Napoleon undoubtedly expresses the law of ancient and modern France’.33 This legislative approach corresponds to the ‘dialogical’, nomadic attitude of courts towards foreign authorities.34

This conception of droit commun as supplementary law would also underlie the Disposition Préliminaire of the CCQ in force. This would not exclude of course the possibility for the code to lay down mandatory rules; the latter, however, should not be considered as part of the droit commun, but rather as ‘particular laws’. Droit commun is not wholly included within the Civil Code; it may also be found outside it. Its transnational character produces an openness of the Civil Code toward external legal sources. This openness would be, according to Glenn, be acknowledged from the same text of the Disposition Préliminaire, when it states that the code ‘établit le droit commun en termes exprès ou implicites’.35 This reference to the power vested in the Civil Code to lay down also in implicit terms droit commun, would be evidence that ‘la plus grande signification du Code civil au Québec est d’indiquer l’appartenance de ce dernier à la grande tradition civiliste et particulièrement au droit commun de la francophonie’.36 This conclusion has to be carefully assessed, focusing on different interpretations of the word ‘établit’ and the expression ‘de façon implicite’ from those followed by Glenn.

The Dictionnaire de la langue française Le Robert reveals that the word ‘établir’ may be employed either to mean ‘fonder quelque chose de manière ferme, stable37 – that is, something which pre-exists, and is not created – or to mean creating something: this understanding governs the use of the word in the legal field (‘mettre en vigueur, en application, en exercice’).38 Glenn understands ‘établir’ in the former sense rather than in the one normally used in a legal context. The term ‘de façon implicite’ may be understood as a reference to the possibility for courts to draw droit commun from a ‘holistic’, systematic reading of the codal provisions; it does not necessarily require them to go beyond the code and look at sources lying outside the system. Glenn’s view is interesting since it is a clear sign of a ‘precomprehension’ of the droit commun, affecting the interpretation of the text of the Disposition Préliminaire. Glenn’s approach to droit commun sheds light on its importance not only at a theoretical level (as to the conceptual foundations of the Quebec system), but also at an ‘operational’ one.

The issue of the ‘responsabilité civile des municipalités’ would be a clear example of the phenomenon of the possibility of the coexistence of rules coming from the two traditions. This ‘co-operation’ would be clear evidence of

l’harmonie inhérente entre deux droits communs de caractère essentiellement facultatif et supplétif […]. Dans un cas précis, les deux droits sont interprétés et l’application de l’un ou de l’autre ne trouble pas la légitimité continue des deux […] il y aura des moments d’influence plus ou moins forte de l’un ou de l’autre des droits, sans que l’équilibre soit rompu.39

The reconciliation of common and civil law traditions made by a specific judgement, even if given from a court of the highest rank, does not bar legal change and the achievement of a different balance between the two. If the exchange of information may occur among traditions underlying different legal orders, there is an even greater possibility when two traditions concur jointly to shape the identity of a given legal system, as is the case with the Quebec legal system. Quebec’s experience would be significant, as it would show that differences between the two traditions are both reconcilable and commensurable.

In this writer’s opinion, Glenn’s approach to the issue of the meaning of droit commun is fully understandable only if attention is paid to his comparative law research devoted to the concept of ‘legal tradition’.40 It is also true that his being a scholar from a Quebec experience affects his ‘systemological’ taxonomies; few remarks will be devoted to this issue.

His conception of tradition as a set of information – and the acknowledgement of its circulation and exchangeability among legal traditions – is presumably affected by his perception of the relationship between common and civil law within the Quebec legal context, and of their conceivability not as different closed systems, but rather as open discursive practices. The idea of ‘epistemic community’ as a notion encompassing those who – sharing a social identity – adhere to a tradition fits well with the reality of the Quebec legal culture: the idea of the complexity of legal traditions caused by the coexistence of multiple internal and lateral traditions; the possibility of contradictions and differences within it which do not exclude once and for all the sustainability of legal diversity; the possibility that within a given tradition a way of thinking is ‘multivalent’ to the extent that ‘sub-traditions’ are neither right nor wrong but may be right in different, multiple and even inconsistent ways,41 all seem to be strongly relevant to the Quebec experience.

This concise diachronic survey from Rivard to Glenn has revealed some recurring elements in the analysis devoted to droit commun: an idea of ‘something’– its substance is not easy to define – legally significant and pre-existing to the formal legislative acknowledgement of a supplementary nature. Yet a difference must also be remarked upon: while Rivard stresses the role of droit commun within the framework of national law, Glenn’s approach is manifestly transnational, advocating the ‘openness’ of the Quebec legal system towards external rules and principles, and claiming a strategic role on behalf of droit commun. The view of law as ‘open’ has two main effects, one more specifically related to the way in which common law has to be faced in Quebec; the other concerning the function assigned to comparative law as a practical knowledge used to deal with the complexity of the Quebec legal system. These two aspects are interwoven. As to the former, Glenn rejects the view of common law as ‘foreign’ in the Quebec legal system, in the grounds that it is insufficient to consider a law as foreign simply because it ‘provient […] d’un autre Etat’.42

A similar position is taken by Jutras43 and Howes.44 In particular, Jutras carefully examines the possible options for dealing with common law sources: first, foreign sources may be dealt with ‘comme si elles appartenaient formellement à l’ordre juridique québécois’;45 second, the implantation of a rule or institution in different soil cuts the links between the imported rule or institution and its exporter; and finally, the ‘departure context’ retains an influential role even if it is not binding for the interpretation.46 Of course, that author supports the third option by virtue of the fact that it starts with the assumption that common law is not foreign.

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