Many are framed as broad, general principles to deal with any dispute that may arise. Unlike common-law courts, courts in a civil-law system first look to a civil code, then refer to previous decisions to see if they're consistent. The rest of Canada uses the common law. The Criminal Code is also considered a code, and it is used throughout Canada. In its other sense, civil law refers to matters of private law as opposed to public law, and particularly criminal law, which is concerned with harm to society at large.
It is usually clear from the context which type of civil law is intended. Aboriginal rights refer to Aboriginal peoples' historical occupancy and use of the land. Treaty rights are rights set out in treaties entered into by the Crown and a particular group of Aboriginal people. The Constitution recognizes and protects Aboriginal rights and treaty rights.
Democratic countries have a legislature or parliament , with the power to make new laws or change old ones. Canada is a federation — a union of several provinces and territories with a central government. There is generally a written constitution based on specific codes e. Only legislative enactments are considered binding for all.
There is little scope for judge-made law in civil, criminal and commercial courts, although in practice judges tend to follow previous judicial decisions; constitutional and administrative courts can nullify laws and regulations and their decisions in such cases are binding for all.
In some civil law systems, e. Courts specific to the underlying codes — there are therefore usually separate constitutional court, administrative court and civil court systems that opine on consistency of legislation and administrative acts with and interpret that specific code;. Less freedom of contract - many provisions are implied into a contract by law and parties cannot contract out of certain provisions.
A civil law system is generally more prescriptive than a common law system. However, a government will still need to consider whether specific legislation is required to either limit the scope of a certain restriction to allow a successful infrastructure project, or may require specific legislation for a sector.
There are a number of provisions implied into a contract under the civil law system — less importance is generally placed on setting out ALL the terms governing the relationship between the parties to a contract in the contract itself as inadequacies or ambiguities can be remedied or resolved by operation of law. This will often result in a contract being shorter than one in a common law country. It is also important to note in the area of infrastructure that certain forms of infrastructure projects are referred to by well-defined legal concepts in civil law jurisdictions.
Concessions and Affermage have a definite technical meaning and structure to them that may not be understood or applied in a common law country. Care should be taken, therefore, in applying these terms loosely. This is further considered under Agreements. In many civil law countries a separate administrative law governs PPP arrangements. It is important to seek local legal advice to check whether these rules apply in a particular civil system.
It is also important to note that in a civil law jurisdiction, unless the contract specifies that the parties have agreed to arbitration, the contract will be enforced by the administrative courts.
Modern democratic theory, as espoused by most developed western democracies, combines two inherently contradictory doctrines. The first is what is often identified as the Diceyan doctrine that it is for Parliament and Parliament alone to establish the law, and, by implication, the fundamental norms upon which it rests.
The second is the belief, widely accepted in developed modern democracies since World War II, that legal systems must adhere to certain basic norms. At a minimum they must allow citizens to vote for those who rule them, and they must not kill any or many, depending on the state of their citizens.
This much we insist on since the Holocaust. Beyond this minimum, there is a variance, although still a solid core of agreement. States, most hold, should not torture their citizens. States should not discriminate on the basis of gender, race or religion.
Finally, at the developing fringes of the new natural law, which goes by the name human rights, are other assertions.
Not only should states not directly kill their citizens, they should avoid killing them indirectly by famine, medical neglect, and degradation of the environment. For Thomas Aquinas, it was human reason that allowed individuals to access, in some form, a deeper understanding of justice. On the one hand, lawmakers may abuse their power by deviating from reason and enacting unjust laws. On the other, because lawmakers can never imagine all possible circumstances under which their laws apply, just laws will become unjust in certain circumstances.
Footnote There is no doubt that the norms I mentioned earlier - government by consent, the protection of life and personal security, and freedom from discrimination - can all be advanced by moral argument.
It is worth noting, however, that they can also be supported by a democratic argument grounded in conceptions of the state and fundamental human dignity that we have developed since John Stuart Mill. Hence, citizens must be given the right to vote their governments into and out of office. Footnote 12 This is so whether the right is written down or not; it flows from our conception of the democratic state.
And if we accept equality based in the fundamental dignity of every human being, then it follows that states should not be able to single out innocent groups or individuals for torture or death.
These precepts can be seen as the expression of unwritten constitutional principles based on the structure of democracy itself. Thus the legitimacy of the modern democratic state arguably depends on its adhesion to fundamental norms that transcend the law and executive action.
This applies to all of the branches of state governance — Parliament, the executive and the judiciary. For example, the Commonwealth Principles on the Accountability of and the Relationship Between the Three Branches of Government , which were based on the Latimer House Guidelines of and endorsed by heads of government in , state in Article Rule of law.
Human rights. Good governance. Principles that all branches of government, including the judiciary, must seek to uphold. Principles that may be written down, in some measure in some countries. But principles that the Commonwealth countries have asserted should prevail everywhere.
One way to confirm the link between fundamental norms and our understanding of statehood and the law is by examining the work of courts operating in systems with no written constitutional bill of rights. Even without clearly written constitutional powers of enforcement, courts have found ways to ensure fundamental justice.
In Canada, decades before the Charter , Rand J. Footnote 17 Members of the Supreme Court of British Columbia - a court on which I would serve a hundred years later, at the time of the introduction of the Charter - relied on the text of the constitution, but also on the principles of English law that underlay that text.
Footnote 18 In , in the Reference re Alberta Statutes case Footnote 19 , in the absence of a written guarantee, the Supreme Court held that freedom of political expression must be recognized as inherent in the nature of democracy. At this point, you will not be surprised to hear me declare my position.
As a modern natural law proponent, I believe that the world was right, in the wake of the horrors of Nazi Germany and the Holocaust, to declare that there are certain fundamental norms that no nation should transgress.
I believe that it was right to prosecute German judges in the Nuremberg Trials for applying laws that sent innocent people to concentration camps and probable deaths. I believe that the drafting and adoption of the Universal Declaration of Human Rights in was a giant step forward in legal and societal thinking.
And I believe that judges have the duty to insist that the legislative and executive branches of government conform to certain established and fundamental norms, even in times of trouble. In short, I am with Lord Cooke on this issue. The real debate, it seems to me, is not about whether judges should ever be able to rely on basic norms to trump bad laws or state action. At least in some circumstances they must be able to do this.
It we agree on this — and I suspect most of us would — then the debate is not about whether judges should ever use unwritten constitutional norms to invalidate laws, but rather about what norms may justify such action.
The argument I have been advancing may dispose of the suggestion that, as a matter of principle, it is inherently wrong for judges to rely on unwritten constitutional norms, if constitutional is understood here in the sense of an overriding principle that can invalidate laws and executive acts.
However, it does not dispose of the contradiction alluded to earlier between the theory that sees Parliament as the source of all law, and the idea that the law may include principles that Parliament has not made. Professor David Dyzenhaus calls this a central contradiction in modern democracies, and he articulates it in terms referable to judges:.
On the one hand, if they fail to give the rule of law substantive content, they will appear to be more concerned with upholding their sense of role than with doing the job that explains why they should have that role. On the other hand, as they give the rule of law content, so they run the risk of appearing to usurp the legislative role The post-Charter Constitution is held out as a justice-seeking document. As he notes:. But if this symbolic change is clear, we are not at all resolved on our sense of the rightful source of justice in our political structure.
Is a just society the fruit of reason or will? Our commitment to democratic institutions that represent the views of the populace — a deep commitment grounded in our history of Parliamentary supremacy — suggests that justice is a question of the authentic representation of will. By contrast, our modern faith in human rights of which the Charter is our national manifestation suggests that justice is not a matter of majoritarian or popular debate, but an expression of a reasoned commitment to the dignity of all human beings.
The answer to the conundrum between justice as an expression of Parliamentary will and justice as an expression of fundamental principles, sometimes unarticulated, lies in the answer to three more particular problems that arise from the concept of underlying unwritten constitutional norms.
The first is the problem of how unwritten norms can be squared with the precept that law should be set out in advance of its application. The second is the problem of how to identify these fundamental unwritten principles that are capable of trumping laws and executive action. The third is the problem of judicial legitimacy. I now turn to these problems, dealing with each in turn.
It will quickly become apparent, however, that all three are related to a central issue: the legitimacy of unwritten constitutional norms. I turn first to the precept that the law must be known in advance of its application, and the problem that - on their face - unwritten constitutional norms violate this principle.
The rule of law signifies that all actors in our society — public and private, individual and institutional — are subject to and governed by law. The rule of law excludes the exercise of arbitrary power in all its forms. It requires that laws be known or ascertainable to citizens, and ensures that laws are applied consistently to each citizen, without favouritism, thus ensuring the legitimacy of state exercise of power.
This is a greater problem in some jurisdictions than in others. Many countries have adopted written bills of rights, which may be seen as an attempt to provide clarity, both to citizens and other jurisdictions, about the law of the land. The Magna Carta of the thirteenth century can in many ways be seen as the first of what we would recognize as a bill of this sort, and of course the eighteenth century revolutionaries of the United States and in France produced impressive documents that sought to capture the essence of the values of their political movements and mechanisms to express them.
In the United States, the constitutional texts have achieved mythical status as embodying not only the limits on government, but the basic values of the state. Renewed interest in setting out basic principles in written form emerged last century out of the horrors of the Second World War and the perceived need for clarity about basic principles that would not be violated.
Even in countries with strong common law traditions, the need to set out basic principles in writing increasingly gained currency among both elites and the masses. The desire to reduce legal principles to writing is significant, but it should not be used to oversimplify the complex issue of the place of unwritten norms in our constitutions.
Two points are relevant here. On the one hand, the Magna Carta is a foundational text designed to provide written guarantees of fundamental principles. On the other, the common law fleshed out and supplemented these principles by a catalogue of largely judge-made rules. Indeed, the ability of the common law to develop ex post facto responses to new situations is frequently cited as its genius.
Not everyone, of course, thought this lack of written laws a good thing. Jeremy Bentham decried what he saw reflected in the common law of crimes. This is the way you make laws for your dog: and this is the way the Judges make law for you and me. The second point that should be made about the view that all laws should be in writing, is that even when the legislature takes the trouble to write down laws, the result is almost always incomplete.
Laws are necessarily stated in general terms. They are intended to apply to a wide variety of situations. Lawmakers cannot conceivably foresee all the situations to which a legal provision may apply, nor how it should do so.
Judges must reduce the legislative general to the situational particular. The result is that even where laws are written down, it is often impossible to predict precisely how the law will apply in a particular situation in advance of a judicial ruling on the matter.
This is as true for civil code countries where all laws are reduced to writing, as it is for common law countries. This is also true of constitutions. Benjamin Berger, writing about the Canadian constitution, has this to say:. When we think about what counts as constitutional law, we generally look exclusively to two sources: the text of the Constitution and the decisions of the Supreme Court of Canada. As any first-year student will learn in constitutional law, this gaze is an under-inclusive one.
Since Confederation, many of the arrangements central to the shape and functioning of our government have taken the form of convention and political construction. Your Money. Personal Finance. Your Practice. Popular Courses. Table of Contents Expand. What Is Common Law? Understanding Common Law. Common Law vs. Civil Law. Common Law Marriage. Special Considerations. Example of Common Law. Common Law FAQs. The Bottom Line. Key Takeaways Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts.
Common laws sometimes prove the inspiration for new legislation to be enacted. Compare Accounts. The offers that appear in this table are from partnerships from which Investopedia receives compensation. This compensation may impact how and where listings appear. Investopedia does not include all offers available in the marketplace. Related Terms Curtesy Definition Curtesy is a common law right of a husband to the estate and property of his deceased wife.
Subsequent laws provide more protection, but discrimination endures.
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