L’arbitrage notarié, instrument idoine de conciliation des traditions juridiques après la Conquête britannique? (1760-1784 [sic])

Questions surrounding Quebec law at the time of the British Conquest has resulted in lively historical and legal debates since the 1970s. The author assesses the role of notaries and arbitration in the supposed "clash" between a common law justice system and a civilian private law tradition in Quebec. While some historians have put forward a "passive resistance" thesis on the part of populations affected by the imposition of British law between 1760 and 1774, the author argues that there is, in fact, evidence of "active collaboration" between French legal practitioners in the colony on the one hand and British officials on the other hand. If the proponents of the "passive resistance" theory posit that the notaries contributed in part to the "survival" of French law, the author points out that it seems that the preservation of French legal norms is the expression of a convergent relationship between jurisdictional system and customary practice of law, between British judicial tradition and French private law norms. He argues that the protagonists of this period were naturally drawn to arbitral practice, a tool for this conciliation, essentially because of the similarities between the mechanisms and methods of execution in the common law and French law. He concludes that as a bridge between these two systems, one could say that both before and after the Quebec Act, arbitration was the stroke that cut through the Gordian knot of clashing legal traditions.

McGill Law Journal / Revue de droit de McGill

Vol. 57

no. 1

135-185

Septembre 2011

fr