Saturday, August 23, 2014

The Tale of Two Systems

A while ago my firm included in its client reporting a piece on the differences between common and civil law which our recent visit to Montreal gave me cause to remember.

Common Law is essentially one created over time in Britain and entirely based on precedent, meaning that interpretations have to be consistent over time.  Putting it again more simply it means that anything you want to do is legal unless its specifically illegal (as determined by past events).  This enables lawyers to write meaningful predictive opinions on which people and firms may base future decisions.  Ideal for business in fact.  Civil Law by contrast is statute driven.  Everything is illegal unless specifically permitted by law.  It is based on Roman and Napoleonic law -- Napoleonic law specifically forbids judges to rule on matters of law in any deliberations which of course creates massive bureaucratic snarl ups when things do need to change.

Common Law countries are pink, Civil Law in blue

Timing in life is everything. The British in Quebec were hamstrung by it, not really having the time to incorporate Lower Canada into the other American colonies post-war before the Colonies themselves revolted so introduced the 1774 Canada Act largely to placate the French Canadians as troubles were brewing elsewhere.  After the US secession, the British immediately were confronted with revolution in France and 30 years of war in Europe that pulled resources, immigration and their attention in entirely different directions… just when it was needed in Lower Canada in fact.

However in the usual British fashion, the legal system imposed on Lower Canada was a mish mash.  Common law was introduced for the criminal side -- a move that stopped wanton torture, arrest and all that other stuff the French used as part of their seigneurial rights. You were deemed guilty until proven innocent and could be tortured to confess your 'crime'.  Under common law you were deemed innocent until proven guilty and weren't subject to torture… any more.  On the civil side, Upper Canada was allowed to maintain its seigneurial system and most significantly their religion.  The church in those days held massive power and the belief that universal education was wrong as it would bring false hopes to the masses.  This meant that most of the rural French settlers (the vast majority) were illiterate, uneducated and still maintained their age old allegiances to church and their liege lord.

This was to prove a long term bugbear but in the near term actually helped. In the winter of 1776/7 when the revolting Americans including Benjamin Franklin occupied Montreal looking to encourage Lower Canada to secede with them, as few people actually lived in Montreal and travel during the winter is almost impossible, they published a pamphlet seeking to garner support.  This failed in the main because few people could read (this is actually what the guide said in the museum tour, I am not making this up!) so the Americans gave up and left.  History really is all about timing!

One 'revolting' American

The 7-Years War aftermath saw Montreal grow to dominance in Canada, first outstripping Quebec City as the most important city in Quebec then by maintaining a considerable lead over growing (Upper Canada) Ontario becoming capital city of the colony and guardian of all the major institutions until the 1837-38 rebellion after which the capital was moved to Ottawa, mid-way between Toronto and Montreal (rather like the siting of Canberra in Australia mid-way between Sydney and Melbourne).

Later, the separatist movement in the 1970's spooked virtually all investment and industry into moving to Ontario as well as created an unpleasant atmosphere for the large anglophone minority who similarly uprooted thrusting Toronto into its current position as the most important city in Canada.  Toronto recently took over as third largest city in North America and is one of the top 5 best places to live in the world (according to some major survey).

Sometimes you wonder why it is that people make the decisions they do.  Certainly common law isn't the simplest of systems to work with but does have the principal of equity built into it.  Civil law is tradition based pure and simple.  What happened in the past will happen in the future.  What was Einstein's definition of insanity?  Doing the same thing over and over expecting a different result.

I know the feeling

Even the French passed laws in the early 20th century formally separating church and state.  This didn't happen until the 1970's in Quebec when universal education and free healthcare was made available to all -- something that had been the case for many years elsewhere in common law anglophone Canada.

To be fair, it is difficult giving up on past glories… and admit that you are wrong.  We see it in Bermuda which is struggling to accept the fact that it is no longer the wealthy, vibrant place it was in the offshore world heyday.  We also see it more broadly in Europe where the great empire nations of the past struggle to come to terms with their substantially smaller place in an ever changing world.  In such times, you have to adapt or wither and die.  Change in fact.

Common law enables change and innovation.  Civil law stifles it.

In Canada terms, Toronto has won.  Most business, non-oil sand investment and immigration heads to Ontario largely because of its system and English language base.  In Quebec all immigrants are forced into French language schools with the result that most immigrants to that province come only from francophone nations in Africa and elsewhere…. including France, the largest element, where people are leaving because of the economic and social mess in that country.

Toronto's canyon lands
See my travel blog here on Track My Tour.

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