In Canada two traditions of law co-exist: common law and civil law. While most of Canada follows the common law tradition, Quebec uses a civil code.
Common or statutory law has its roots in British law and is based on decisions reached by judges in the courts. It is essentially judge-made law where decisions by judges in previous court cases guide decisions in similar cases in the future. When a judge makes a decision that is to be legally enforced, that decision is known as a precedent or a rule that will guide judges in making future decisions.
Common law is unique in the sense that it is not formally written down in a statute or a drafted piece of legislation; it exists only in past decisions. This allows it to be flexible and adaptable to the changing needs of our society.
Quebec is the only province in Canada founded on a civil law tradition. This tradition is based on Roman law. In ancient Rome, the law was scattered in a variety of written forms such as books, statutes and proclamations. The Emperor at the time ordered that the law be consolidated into one book, which became known as the Civil Code.
A civil code is a comprehensive statement of rules often written as general principles that can be applied in a court of law. Unlike common law courts, courts in the civil tradition first refer to the Civil Code and then to previous decisions in making judgments.
Statutory law or legislation is the law as passed by a provincial legislature and has a set legislative process that must be followed before it becomes law within the province.
The process of making laws in Alberta is similar to the process of making laws in any democratic country. The power to make new laws or change old ones resides with the legislature or parliament. In Canada, we have both a parliament in Ottawa to address laws for all of Canada, and a legislature in each province to deal with matters of provincial jurisdiction.
When parliament or a provincial legislature passes a statute, that statute takes the place of common law in dealing with the same subject. In Quebec, statutes exist to deal with specific problems not dealt with in the Civil Code.
As society grows and develops, so must our laws. In Alberta, it is the responsibility of the legislative branch of the government to introduce new laws or amendments to existing laws in the provincial legislature. It does this to ensure Alberta laws are up to date and reflect the changing legal needs of our society.
This article is part of the Government of Alberta’s commitment to help inform Albertans about the justice system. For further information visit http://www.gov.ab.ca/, or contact us for more information by phone (780) 427-8530 (dial 310-0000 toll free anywhere in Alberta), or by e-mail at PLE.Coordinator@gov.ab.ca.