H. Patrick Glenn

Sustainable Diversity in Law

AbstractThe field of law and development has been a recognizable one for approximately a half-century. However, evaluations of the success of the law and development endeavor appear overwhelmingly negative. Failure of previous efforts of law and development do not appear to be due to a lack of either talent or money. Some of the world’s best legal talent has been brought to bear on the problems, and very large sums of money have been spent. The failure appears rather to have been conceptual, as suggested by the need for an alternative theory. So some critical consideration appears necessary of the main underlying concepts which have driven law and development projects. Subsequent attention will be given to an alternative theory, that of sustainable diversity in law. The rule of law has historically been a useful concept in some parts of the world; it could well be replaced by the rule of laws. The field of law and development has been a recognizable one for approximately a half-century. However, evaluations of the success of the law and development endeavor appear overwhelmingly negative. Failure of previous efforts of law and development do not appear to be due to a lack of either talent or money. Some of the world’s best legal talent has been brought to bear on the problems, and very large sums of money have been spent. The failure appears rather to have been conceptual, as suggested by the need for an alternative theory. So some critical consideration appears necessary of the main underlying concepts which have driven law and development projects. Subsequent attention will be given to an alternative theory, that of sustainable diversity in law. The rule of law has historically been a useful concept in some parts of the world; it could well be replaced by the rule of laws.

The Global Challenge in Common and Civil Law Contexts: A Canadian Perspective

The Canadian chapter brings together two reports, covering Quebec and the common law provinces of the country. In Quebec, a mixed jurisdiction, there has always been a particular awareness of the challenge of how to train students in both the common law and civil law, a history, the Quebec report finds, that has facilitated and furthered an internationalisation of legal education beyond the exigencies of Canadian bijuralism. The report on the common law provinces, however, diagnoses a lack of a similar mindset in common law Canada. Beyond this difference, in both common and civil law provinces, more and more opportunities are opening up for Canadian law students to add international components to their educational experience. The unified conclusion of the authors is that internationalisation should not only be perceived as including more inter and supranational topics in the curriculum or offering a more intense training of the skills necessitated by ‘global lawyering’. Properly understood, internationalisation would also include the creation of awareness of the economic and cultural implications of the phenomenon of ‘globalisation’ and of an understanding of legal pluralism as a manifestation of the phenomena of globalisation and migration in a domestic context.

The Irrelevance of Costs Rules to Litigation Rates: The Experience of Quebec and Common Law Canada

All jurisdictions in Canada follow the “world rule” that the loser pays the costs of litigation. There are, however, great differences in implementation of the rule. Quebec has allowed the level of recoverable costs to become negligible, given the effect of inflation, and the operation of the “world rule” in Quebec therefore approximates the U.S. rule that each side pays their own costs. This is generally seen as a means of facilitating access to justice, eliminating the down-side risk of a costs award, yet the Quebec experience in recent years has been one of dramatic decline in litigation rates. Nor have devices such as contingent fees or class actions obviously compensated for the decline. The conclusion is that costs rules are irrelevant to litigation rates, at least where counsel fees have reached a certain level.

Continuity and Discontinuity of Aboriginal Entitlement

The last three decades have seen an expansion of recognition of aboriginal rights and title by common law courts in the Commonwealth. In 1973 the Supreme Court of Canada in Calder v British Columbia (AG)1 rejected the then Government of Canada’s view that aboriginal claims were ‘so general and undefined that it is not realistic to think of them as specific claims capable of remedy’.2 It was stated by Hall J that ‘. . . the Nishgas in fact are and were from time immemorial a distinctive cultural entity with concepts of ownership indigenous to their culture and capable of articulation under the common law’.3 In Mabo v State of Queensland (No 2)4 the High Court of Australia rejected the prevailing view that Australia was terra nullius on the arrival of English settlers. Brennan J stated that:

North America as a Medieval Legal Construction

Paper delivered at the Seventh Annual Meeting of the Common Core of European Private Law Project - Trento, Italy, July 12-14, 2001. A version of this paper will soon be published in: M. Bussani, U. Mattei (eds.), Making European Law. Essays on the Common Core Project, 2nd edition, forthcoming, Trento, 2002.