Volume 21, Number 2, 1980

EN:

This paper attempts to survey the present state of the law and current trends in legal literature as regards the concept of enterprise in Quebec law.

The legal concept of enterprise does not carry the same meaning for all legal scholars in Quebec. A more traditional group restricts it to cases where some type of legal entity is created as a subject of rights and liabilities. A modernist group is prepared to give legal recognition to the enterprise as the basic economic unit, having rights and duties on a broad societal scale. This latter approach, closer to the realities of economics, is obviously followed in federal and Quebec legislation, whether protective or interventionist, with the result that conflicting definitions of the enterprise have been used for many different purposes.

Through an increasing body of published writings, Quebec legal scholars have been contributing to the rationalization and harmonization of commercial law in relation to the concept of enterprise. Judicial adherence to traditional views has sometimes prevented or slowed down the implementation of rules suggested by scholars. In some cases, though, bold judicial pronouncements have met with unqualified approval from the writers. In certain areas, administrative bodies such as regulatory agencies have clearly outdone the regular courts at creative and effective law-making.

In spite of shortcomings on the part of legal writers, legislators and judges, a concept of enterprise is gradually emerging as the key element in the development of a more realistic system of commercial law.

EN:

The middle of the twentieth century marked a turning point in the history of scholarly writings on the civil law in Québec. The emergence of a full-time teaching body in the law faculties entailed consequences of primary importance: publications gained not only in quantity, but also in quality and diversity and, in particular, the reactions of legal writers to judge-made law became frequent and substantial.

The relations between legal writers and judges illustrate, here as elsewhere, the particular situation of the Québec legal system at the crossroads of civil law and common law. For instance, due to the British-inspired method of appointing judges and some local traditions, judges are personally known to many professors. Furthermore, decisions of the courts, most of the time, are written in a learned style, the merits of the legal issues being discussed and doctrinal opinions being quoted with approval or criticism.

These relations between the writers and the judiciary may explain the great interest of legal writers in judge-made law and their perhaps insufficient sense of critical responsibility vis-à-vis that law. Legal writers and judges have the great advantage of speaking the same language and of maintaining a dialogue — an advantage which benefits law itself and the whole community.

EN:

This paper surveys the outlook and statements of Quebec and Canadian legal scholars and judges on issues of administrative law. It attempts to determine whether scholarly writings merely describe the existing state of the law, or whether they play a creative role in pointing for the courts the way in which law should develop towards an ideal model.

To this end, an assessment is first made of the creative power of judges when interpreting the law and of the reactions of scholars to this. Then, an attempt is made to show affinities between judges' and scholars' outlook in cases where an administrative decision conflicts with individual rights or liberties.

The paper concludes that while most public law writing in Canada and Quebec usually reads as a restatement of current case law, recent works show an increasing tendency towards independent, critical legal thinking.

EN:

Given the almost total lack of constitutional or statutory provisions for the formulation and application of international law, Canadian courts have been invested with the basic responsibility for devising solutions to the problems that have arisen in this field. This paper examines how successful the courts have been as well as the way in which legal literature has reacted to their performance.

It is the view of the authors that in dealing with international customary law, Canadian courts have applied solutions adapted from the law of Great Britain in a purely empirical way. While the absence of any theoretical framework has not been a crucial impediment until now, it is difficult to see how future problems can be resolved without any reference to basic principles. With respect to the interpretation and application of treaties, the transposition of principles derived from British practice to a federal context has been the source of notorious constitutional difficulties.

Generally speaking, because of the traditional reverence accorded to the will of Parliamant, Canadian courts have been reluctant to recognize any measure of supremacy to international law.

EN:

Although scholarly writing is still a relatively recent phenomenon in Québec private international law, it has often been strongly critical of judicial decisions which attempt to formulate or reformulate non-codal conflicts rules.

Two trends are discernible : the defence of the civilian origin of Québec law against the imposition of common law rules which are not in harmony with the policy of the system ; and the advocacy of a modernization of existing solutions as well as the introduction of techniques and approaches such as material rules and rules of immediate application.

EN:

This article is a survey of the attitudes of legal writers concerning judicial creation. A number of articles, studies and case comments in the areas of mens rea, duress and drunkenness are canvassed in order to determine their authors' views on the legitimacy of the rules established by courts in the above areas. Judicial creation often involves departures from traditional legal reasoning; the attitude of legal writers towards these departures is also studied. Finally, it is sought to establish the views of the doctrine on the characteristics and qualities which judicial creation should present.

A number of points emerge from the study : attitudes towards judicial creation are generally favorable. The legitimacy of the creative role is most often taken for granted. As regards judicial reasoning, departures from stare decisis are generally seen as valid ; less unanimity is reached on departures from traditional rules of construction. There does not appear to be any perceptible difference between the attitudes of common law and civilian writers on judicial creation except on the point of rules of construction, where civilians seem somewhat more inclined to traditional views. In all cases, it was found difficult to determine the philosophical perspectives of the writers although these would normally be expected to have a strong bearing on the issue oj judicial creativity.