JUDICIAL DIALOGUES IN MIXED JURISDICTION COURTS: HOW CIVILIAN AND COMMON LAW JUDGES CONVERSE ON CANADA’S SUPREME COURT
Abstract: This article analyses the exchanges between the civilian and common law traditions in the private law jurisprudence of the Supreme Court of Canada from its inception in 1875 to the present. This is a “mixed jurisdiction court” because its justices come from two legal traditions (three judges must be from the civilian jurisdiction of Québec, the other six from the rest of Canada which adheres to the common law tradition) and all judges are eligible to hear and decide all cases that come before the Court, regardless of their own legal tradition. Various conversational trends, discerned from the justices’ written decisions, can be identified with respect to the role that comparative law should, or should not, play in the deliberations of the Court. These are shown to alternate between harmonisation/assimilation, diversification/autonomy, and a third way, inspiration. The study of these conversational trends yields many fascinating insights into the co-construction (as opposed to simple co-existence) of the two traditions, and possibilities for mutual influence or cross-pollination. The detailed examination of the private law caselaw opens a new front within the extant literature in mixed jurisdiction studies and highlights how the “infiltration” of the civil law by the common law in the classic theory of the mixed legal system is not always unidirectional. Rather, as is the case in Canada, the inspiration or influence can cut both ways.
Keywords: Canada; comparative law; Mixed jurisdiction studies; polyjurality/ monojurality; private law; Québec
