Culture et droit processuel : le cas du Québec
JUTRAS, D., « Culture et droit processuel : le cas du Québec », (2009) 54 McGill Law Journal 273-293.
This article considers the influence of culture within Quebec’s procedural law, building upon the recent reform of the Code of Civil Procedure. The author affirms that the distinctiveness of Quebec’s procedural law resides in its mixed culture, which is the product of the superimposition of different perspectives on the institutional values and symbols of the state’s dispute-processing mechanisms.
Thus, official legal culture is composed of three spheres: political culture, professional culture, and normative culture. The political culture of litigation and its economy is North American by virtue of certain characteristics, such as marginalization, secularization, the market-based provision of legal services, and the mobilization of civil justice for political goals. The culture of legal professionals is clearly a common law culture. The procedural approach is, in effect, liberal and individualist, with an adversarial and largely oral trial process. The normative culture promotes a resurgence of the civilian tradition. Quebec’s national and cultural roots explain the inscription of its civil procedure within a civilian interpretative tradition, which accords a role of primacy to the Code of Civil Procedure in the reconciliation of procedural and substantive law.
The author concludes that there exists a plurality of cultures within Quebec’s procedural law, rather than an integrated culture. He calls for a deeper study of the interaction of these three distinct spheres of legal culture.
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