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Politics of Codification

Politics of Codification: The Lower Canadian Civil Code of 1866

BRIAN YOUNG
Stable URL: http://www.jstor.org/stable/j.ctt81326
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    Politics of Codification
    Book Description:

    Young interprets codification as part of a larger process that included the collapse of the Lower Canadian rebellions, the decline of seigneurialism, expansion of bourgeois democracy in central Canada, professionalization of the bar, and formation of the institutional state. Central to codification was a profound ideological shift in Lower Canadian society that gave priority to exchange and individual property rights. Young examines the evolution of codification from its nationalist origins in the 1820s and 1830s into a Civil Code that was integral to Confederation and became a flagship of bilingualism in Quebec. The formation of the commission, the work of the codifiers, and the reaction of the anglophone minority and the Roman Catholic hierarchy are considered, as is the Code's meticulous blending of a conservative social vision with the principles of freedom of property.

    eISBN: 978-0-7735-6504-3
    Subjects: Law
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Table of Contents

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  1. Front Matter (pp. i-vi)
  2. Table of Contents (pp. vii-viii)
  3. Tables (pp. ix-x)
  4. Illustrations (pp. xi-xii)
  5. Preface (pp. xiii-2)
  6. 1 The Legal Landscape (pp. 3-17)

    In 1859 - the year that the new Victoria Bridge permitted rail transportation from the Atlantic coast at Maine, through Lower Canada, and across Upper Canada to the Michigan border - three middle-aged men began meeting in Quebec City to codify the Civil law of Lower Canada.Although of different ethnic backgrounds, René-Édouard Caron, Augustin-Norbert Morin, and Charles Dewey Day shared a common social class, profession, and position on the bench. Freed by the state from their judicial duties and setting their own timetable, they continued to meet over five years; they had their own clerks, library, and budget. And although...

  7. 2 Attitudes to Codification before the Rebellions (pp. 18-42)

    The Custom of Paris was the central element in the Civil law of New France. Edited in 1510 and 1580, the Custom of Paris was introduced into the colony around 1640 but there was a diversity of customary law until a 1664 edict imposed it as the only one permitted.³ The Custom of Paris consisted of sixteen titles containing 362 articles. Six titles dealt with family and inheritance, five with property, and four with debt recovery.Certain articles, including all of Title XII, ‘Of the Noble Guardianship and Bourgeoisie’,were not established in the colony.⁴

    The Custom emphasized seigneurial tenure, the privileged...

  8. 3 The Political Will to Codify, 1838-57 (pp. 43-65)

    The crushing of the Patriotes facilitated severance of the historic link between the seigneurial system and the Civil law. While dismantling the former, reformers could impose coherence and ideological change on the latter. The collapse of the rebellions also allowed the ties between codification and nationalism to change. During the Union period, 1840-67, the meaning of codification changed. It became part of a political dynamic that included the initiatives of the authoritarian Special Council, the advent of bourgeois democracy in the 1840s, and expanding opinion in favour of a federal state in the 1850s. As one element in a move...

  9. 4 The codifiers (pp. 66-98)

    In presenting cases, passing judgments, or writing a code, legal intellectuals use not just the strict tools of their trade but bring with them instinctiveness derived from their own experience, training, social class, and particular character. This blend in the codifiers of private and public, of ambition and altruism, of the lofty and profane, of considerations of family finances and sensitivity to the highest legal principles can be discerned in the careers of the three codifiers.

    Louis-Hippolyte LaFontaine - leader of the opposition (1843-7), prime minister, and chief justice - was Lower Canada’s most distinguished politician and jurist and an...

  10. 5 Politics of the Codification Commission, 1857-66 (pp. 99-120)

    The act establishing the Codification Commission was one of three law reform bills enacted on 10 June 1857. With the ‘Act for settling the Law concerning lands held in Free and Common Socage’ and the ‘Judicature Act’, codification would culminate a two-decade process in which Lower Canada’s legal culture was profoundly transformed. We have seen the weight of this change: the collapse of seigneurial law; the realignment of power among Lower Canada’s social groups; institutionalization of the education and corporate rights of legal professionals; measures concerning registry, bankruptcy, and statute consolidation; reinforcement of the principle of equality in contract over...

  11. 6 The Commission at Work (pp. 121-140)

    This chapter examines the setting up of the commission, the dynamic among the codifiers, and the process of codification. I leave article by article examination of the code to labour, family, or commercial law specialists, and emphasize instead the codifiers’ delicate ideological task of reinforcing traditional social relations through the bias of the family while putting freedom of contract in a central place.³ From this perspective, their work gives little sense of Lawrence Friedman’s image of codification as a process of change, as ‘a handy way to acquire new law, a way of buying clothes off the rack, so to...

  12. 7 The Persistence of Customary Law: Married Women as Traders (pp. 141-156)

    Strongly influenced by Donald Creighton, much of Canadian legal and business history is driven by the experience of the great merchants and entrepreneurs. For example, in his provocativeLegacies of Fear: Law and Politics in Quebec in the Era of the French Revolution,F. Murray Greenwood extols Creighton’s ‘magisterial’Empire of the St. Lawrence,expanding the Laurentian thesis to include the security issue as friction between merchants and the French Party led to development of a ‘garrison mentality’ among the English élite.⁴ However, very different legal imperatives emerge if one puts international merchants and ethnicity to the side and focuses...

  13. 8 ‘Wittingly and Willingly’: The Law of Obligations (pp. 157-172)

    Technically oriented legal historians generally emphasize that the aim of a compilation of law such as a code is essentially reform directed to improving the organization and accessibility of the law. In these interpretations, doctrinal and conflictual elements are subordinated to the techniques of coordinating a corpus of private law in an essentially consensual environment.⁴ From a political perspective, in which Law reflects a particular social conjuncture, however, the Civil Code resulted from a specific historical moment that included the implementation of bourgeois democracy, a fundamental redefinition of property rights through the dismantling of seigneurialism, and Confederation. As the treatment...

  14. 9 Conclusion (pp. 173-180)

    Canadian historiography often serves to level our past with French Canadians frozen in a reactionary time warp. Important anglophone intellectuals repeatedly depict Quebec culture as peopled with ‘aristocrats’ and ‘sows’³ Among these recurrent images, Civil law has its place as an illiberal, un-North American form of jurisprudence that has blocked creation of a homogeneous Canadian society in which all citizens would ‘abide by the same laws.’⁴

    Among other distortions, this depiction serves to deny the historicity of codification, which emerged from a complex dynamic of changing property, social, and political relations in the first half of the nineteenth century. Codification...

  15. Chronology (pp. 181-190)
  16. Abbreviations (pp. 191-192)
  17. Notes (pp. 193-230)
  18. Essay on Sources (pp. 231-236)
  19. Select Bibliography (pp. 237-252)
  20. Index (pp. 253-264)
  21. Picture Credits and Sources (pp. 265-265)