Legal Translation in Canada: Understanding the Differences Between Civil Law and Common Law
A large grocery store chain from Toronto, Local Groceries Inc., wants to expand its specialty supermarket network by selling franchise in Quebec under the Aliments de chez nous banner. Management has held many discussions with potential franchisees, who indicated their interest in signing a deal. There’s just one obstacle: the key legal instruments—including franchise contracts, sample supply agreements with local suppliers and sample employment contracts that franchisees must have their employees sign—are only in English. Local Groceries Inc., therefore, has enlisted OXO Innovation’s legal translation services to translate these documents into French.
OXO’s legal translators, having reviewed the documents, know that the translation process will be somewhat complex. The English contract templates were written for the common law legal system and need to be translated so they can be used under the civil law legal system. It is essential that translators know the differences between these two systems to inform their translation choices for this project that is both bilingual and bijural. But what exactly is Canadian bijuralism?
A brief history of the two legal systems in Canada¹
Pre-1066: Customary Anglo-Saxon law in England, customary law largely based on Roman law in France.
1066: The Normans, a group of Romanized (Francized) Scandinavian descendants that had settled in northern France, conquer England, which was then under Anglo-Saxon rule.
16th and 17th centuries: The British commercially dominate the seas; at the same time, a major body of judicial decisions takes shape surrounding commercial matters.
1760: England conquers New France; a Royal Proclamation is issued attempting to assimilate French Canadians.
1774: The Quebec Act is issued to let French Canadians keep civil law, thereby strengthening their loyalty to the British Crown.
1804: After rising to power, Napoleon has prominent French lawyers draft a civil code, which standardizes the various local legal customs to create a unified national law.
1866: The Civil Code of Lower Canada is adopted, largely based on the Napoleonic Code—private law with a strong accent on rural concerns and land ownership rather than commercial law.
Constitutional Act 1867: The Confederation is founded, the modern Canadian constitutional structure is set up, including the division of powers between the federal and provincial governments (the latter being responsible for private law, the Quebec government continues to apply its civil code).
1991: The Civil Code of Québec (CCQ) is adopted; it is the product of a lengthy process modernizing Quebec private law.
Current legal landscape in North America
In Quebec, private law (meaning legal interactions between persons) is derived from customary French civil law. The CCQ contains the essence of Quebec’s private law. In the province, however, public law (which governs the legal interactions between individuals and the State) has its origins in common law and British constitutional structures and traditions (court system, etc.). Here, legal traditions are hybridized, as shown by the form that Quebec judgments take, for example.²
In other Canadian provinces, the legal system rests entirely on common law.
In the United States, the legal system developed directly from common law, but American law often claims its autonomy from the traditional body of British jurisprudence. In fact, British, Canadian and Australian law in particular share a great deal between them—judges refer to or draw inspiration from foreign judgments—and not so much with American law.³
What are the main differences between civil law and common law?⁴
Common law is a system that historically focused on the relationships between people (for instance, several rights of ownership may overlap), whereas civil law is based on the primacy and absoluteness of a person’s rights (including the right of ownership).
Since Napoleon, private civil law has been built around massive laws—the codes—which crystallize applicable principles. A judge’s job is then to render judgements on borderline cases and subtleties.
Civil law is based on abstract principles from which the codes derive rules that can then be applied to concrete situations. Common law has historically operated by induction: if a dispute involves a common law concept rather than the application of a written statute, the judge will, at the suggestion of the parties, examine a body of precedents in the jurisprudence and attempt to deduce a rule, logic or principle through which the disputed issue can be decided.
The two systems have a different relationship to logical reasoning. The Civil Code of Québec drafters opted for firm, categorical statements that leave nothing open to interpretation, and from which it’s sometimes necessary for the reader to derive implicit rules.
Common law legal drafting is wordier in its formulation of rules, even if it means tolerating logical overlaps or redundancies.
|Historical foundations||Based on relationships between persons||Based on the primacy and absoluteness of a person’s rights|
|Principles||Based on abstract principles from which the codes derive rules that can then be applied to concrete situations||Works through induction: the judge examines precedents in the jurisprudence and attempts to deduce a rule or principle to decide on the disputed issue|
|Drafting||The Civil Code of Québec drafters opted for firm, categorical statements that leave nothing open to interpretation, and from which it’s sometimes necessary for the reader to derive implicit rules.||Common law legal drafting is wordier in its formulation of rules, even if it means tolerating logical overlaps or redundancies.|
Does the difference between civil law and common law matter much nowadays?
Less and less, as with the State increasingly intervening in every aspect of society, common law countries have written down the essence of their law in statutes. Nevertheless, some comprehension of the differences between the systems is essential to understand where certain features of legal language come from.
More generally, the world is currently seeing a consolidation of the great Western legal systems that civil law and common law represent, both in theory and in practice. Civil law, with its rational, person-centred construction, has considerable intellectual appeal, while the flexibility of common law, much of which stems from its history that is closely associated with commerce, is also highly attractive in an increasingly interconnected commercial and financial world.
If this topic interests you, stay tuned—we have a whole series of blog posts on the intricacies of legal translation coming up. In the meantime, contact OXO if you have any legal documents that need a translation. Our legal translators are here to help you through this vital step for doing business both in Canada and abroad.
¹ Learn more: Michel Morin, “Les grandes dates de l’histoire du droit Québécois, 1760–1867”, XIIIe conférence des juristes de l’État, accessible at https://papyrus.bib.umontreal.ca/xmlui/bitstream/handle/1866/2464/Michel%20Morin.pdf?sequence=1&isAllowed=y, and Department of Justice, “Important dates in the history of the civil law of Quebec,” accessible at https://www.justice.gc.ca/eng/rp-pr/csj-sjc/ilp-pji/hist/index.html.
² Quebec courts’ judgments charged with applying civil law frequently contain references to jurisprudence to clarify the disputed issues, as with common law judgments. This differs from French court judgments, for example, which are very brief and refer only to the applicable law.
³ Civil law has had some historical influence in the development of American law, and some states have been inspired by the codification efforts in the civil law world: Louisiana has had its own civil code since the early nineteenth century, blending civil law and common law principles, while California has been codifying its laws since the 1880s.
⁴ To learn more, see H. Patrick Glenn, “Legal Traditions of the World,” Fourth Edition, Oxford University Press, 2010.
About the authors
|Étienne St-Pierre Lemay, Translator
Étienne was an English-to-French Translator at OXO from 2019 to 2022, specializing in legal, financial and administrative translation. A lawyer by training, he holds a Graduate Diploma in Legal Translation and a Bachelor of Laws from McGill University.
|Mélodie Tessier, Certified Translator
Mélodie joined the OXO English-to-French legal translation team in 2019. She is a certified translator with OTTIAQ. She holds both a bachelor’s degree in translation from Université de Montréal and a diploma in paralegal studies. She worked as a paralegal for three years before going into translation.
|Graham Perra, Certified Translator
Graham studied in International Studies and Law before earning a bachelor’s degree in translation at the University of Ottawa. He’s a certified translator with OTTIAQ and translates from English and Spanish to French. Graham joined OXO in 2020.