Law Fusion

By Jeff Roberts

The Quebec Research Centre of Private and Comparative Law is breaking new ground with international research programs into legal education that integrates civil and common law, and the global expansion of trust law.

Professor Lionel Smith is the director of the Quebec Research Centre of Private and Comparative Law.

In the McGill Faculty of Law’s undergraduate program, every student is trained in civil and common law, an unusual education that produces lawyers able to work in either of the Western world’s two major legal traditions. Montreal is an obvious location for this crossroad: While Quebec follows the civil law tradition, inherited from France, the rest of Canada is governed by the common law, derived from England. But McGill’s integrated philosophy isn’t about maintaining twin solitudes, and it isn’t restricted to the classroom. Rather, the University’s legal scholars use their understanding of both traditions to find innovative ways of approaching and understanding juridical challenges, both old and new.

At the heart of this ambitious intertwining is the Quebec Research Centre of Private and Comparative Law. Founded in 1975 by eminent civil law professor Paul-André Crépeau, the QRCPCL researches the fundamental private law of both legal traditions. The centre brings together not only a large proportion of McGill’s law professors, but also undergraduate and postgraduate student researchers and scholars from other Quebec and Canadian universities, as well as professors and other visitors from all over the world.

“The great irony is that people from each tradition look at the other and think it’s less flexible,” says Lionel Smith, James McGill Professor of Law and director of the QRCPCL since 2007. “Common lawyers look at a civil code, which may be 3,000 sections long, and think, ‘You’ve frozen everything in time with this text.’ And civil lawyers look at the common law, in which the cases make the law—because one judge is bound to follow a previous judge’s decision on a similar point—and think, ‘You’re shackled by this doctrine of precedent.’ But the truth is interpretation changes the law over time. Both traditions are always evolving, and there are highly valuable insights to be gleaned from each.”

Smith, one of Canada’s foremost experts on the law of trusts, doesn’t just teach lessons of legal interaction, he lives them firsthand. He was teaching at Oxford University when he joined the international comparative law project called the Common Core of European Private Law, a step that ignited his emerging interest in the civil law. In 2000, he jumped at the opportunity to work in both legal traditions at McGill. But he decided that, in order to take the fullest advantage of this opportunity, he needed more formal education in civil law—so, while working as a full-time professor and associate dean, he pursued a civil law degree as a part-time student at the Université de Montréal. Although it was odd to be twice the age of most of his classmates, and juggling work and school was a challenge, he loved the experience. “Learning about the civil law, I felt the same excitement as when I first went to law school,” Smith remembers. He laughs and adds, “Maybe going back was just a justification to experience that excitement again!”

QRCPCL researchers are interested in points of intersection, with a particular interest in law and language. Under Smith’s leadership, the centre has carried on a long tradition of the elaboration of dictionaries of Quebec civil law that are widely used in legal practice and in the courts. (This research unfolds in collaboration with the Université de Moncton’s Centre de traduction et de terminologie juridiques, the University of Ottawa’s Centre for Translation and Legal Documentation and the Collège universitaire de Saint-Boniface’s Institut Joseph-Dubuc.) Another dimension of this research entails examining how legal concepts and norms are expressed in multiple languages; centre researcher Edmund Coates, for example, was the principal researcher for a full review of the English text of the Civil Code of Quebec, flagging both simple translation errors and much more nuanced issues of connotation and meaning. (Coates is now working with Justice Quebec to implement those recommendations.) Smith has also sought to take the Centre’s activities onto a more global stage. He has launched an ambitious long-term project aimed at understanding the implications of McGill’s integrated approach to legal education for our understanding of the law itself. One aspect of this research has grown into a fully fledged agenda of its own: a global study of the legal institution of the trust. Traditionally considered to be characteristic of common law legal systems, trusts provide a legal means for one person, a trustee, to manage property on behalf of another person, the beneficiary . Today a wide range of property, from land in Italy to shares in the New York Times Company, is held in trust. And yet trusts do not exist in most civil law jurisdictions. (Quebec and Louisiana are notable exceptions.) In the modern world, however, pressure from international investors is leading more and more countries to ask how they can combine a version of the trust with their civilian understanding of the law of property.

The QRCPCL’s scholarly contribution to these global developments is reflected in events such as “The Worlds of the Trust/La fiducie dans tous ses États,” a three-day conference that it will host in September 2010. The centre will welcome scholars from all over the world to explore how civil law and “mixed” jurisdictions have reacted, or are reacting, to the legal stranger entering their midst.

“The civilian world looks to Quebec in regard to trusts,” says Smith. “They’re interested in the particular legal theoretical solution for incorporating trusts into a civilian law of property.” Although trusts have been part of Quebec law at least since 1879, it was the 1994 Civil Code of Quebec that truly “civilianized” the concept to make trusts more than an ill-fitting transplant. The common law understanding of trusts—according to which the trustee and the beneficiary both “own” the same thing, but in different ways—is at odds with the civilian definition of ownership. “In civil law, either you’re the owner or you’re not,” Smith explains. “The Quebec solution seeks to make the trust property ‘ownerless.’ The trustee has management powers over the property and the beneficiaries are understood as having claims to that property— two ideas that are consistent with civil law.”

One benefit of these new research programs has been the attraction of significant funding from new sources. In the last two years, the QRCPCL has received a four-year grant from the Fonds québécois de la recherche sur la société et la culture for its work on the implications of the integrated approach to legal education, and a three-year grant from Quebec’s Ministère du Développement économique, de l’Innovation et de l’Exportation for the work on trusts. The ministry usually funds research for commercial innovations, but Smith success fully made the case that the Quebec trust is an innovation unto itself—and one that’s caught the attention of lawmakers from France to China. “Putting the trust in the Quebec civil code is symbolically significant in the civilian tradition,” says Smith. “It means that the trust is not a special thing that exists to serve some commercial or other particular purpose, but rather is part of the basic law that applies to everyone and that everyone can use. A lot of the world is very interested in knowing how the Quebec trust works, and how Quebec overcame the obstacles to implementing trusts in a civilian system.” Smith notes that there remain a number of theoretical questions about the Quebec trust, some of which are being studied by postgraduate researchers at the QRCPCL. “We can learn from other systems and other jurists, just as they can learn from us. If the centre can help to make that happen, then I’ll be happy.” ■