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President's Corner

President's Message

All of my friends are allowed...

How often have parents heard the argument that "all of my friends are allowed to watch TV until 9 o'clock, play outside after supper, swim without a life jacket, and they don't have to make their beds or take their vitamins every day"?

Our children often challenge the rules that are imposed on them by suggesting that if "the house rules" at their friends' homes are different, the rules at their own house should change.

In a sense, the children's arguments are based on "comparative law": they refer to the existence of a different set of rules that regulates their friends' lives in an attempt to change their own family's rules. Thus, they suggest that their parents are not being entirely objective, that there is nothing sacred about the rules imposed on them and that those rules could be different.

Occasionally, the children win. When faced with the argument that all the children in our neighbourhood were allowed to ride their bicycles until 8:30 instead of 8:00, I gave in. After reflection and discussion, I was persuaded and, as a result, the 8:00 rule was changed to 8:30.

Most of the time, however, children are not successful. For centuries, parents have known how to resist the argument that "all of my friends are allowed...". Since the beginning of time, parents have opted for legal pluralism: every household has its own rules. "If you lived at Annie's house, you would have to obey their rules, but since you live here, you have to obey our rules."

In a sense, legal pluralism involves acceptance of the fact that there can be different sets of rules that coexist on a parallel basis - acceptance that uniformity is not always necessary and that the coexistence of different sets of rules is both appropriate and rewarding.

Each household has rules that reflect the rhythm of that house, its needs, its culture and its tradition.

In fact, we readily accept a certain kind of pluralism; different businesses have different rules governing returns and exchanges, different employers pay different wages and different religions have different commandments. Society accepts this pluralism without question in the private sector. In fact, it is assumed that a person who does not like the rules will shop elsewhere or can change jobs or even religions.

When we refer to the official law of a state or its regulatory system, pluralism is also accepted. In fact, a country's federal structure is based on this acceptance of official legal pluralism; within its area of jurisdiction, each province can adopt the laws it considers appropriate. More and more, aboriginal law is being recognized and applied in certain areas parallel to the existing legal systems. Finally, we also accept self-regulation by certain professions and businesses.

Therefore, we often accept the difference between various sets of rules. However, there is sometimes reluctance to do so; this is why there are movements to standardize the law, harmonize the rules and minimize the differences between the systems.

In fact, we are considering the challenges presented by this difference between systems. Occasionally, it will be necessary to manage the interaction between these legal systems and to ask: which rule will be applied? Which system will predominate? The law has devised conventions and customs to manage the interaction between the systems of different countries. It is therefore in a good position to reflect on these questions. In many cases, it will be the application of territoriality that determines the application of the rule (at Annie's house, they follow the rules established by Annie's parents; at our house, we follow the rules that we have established). Often, the wishes of the parties will do so (the parties to a contract can decide to resolve their disputes in accordance with a law which they determine) or even a rule that is based on two legal systems. For example, in the field of arbitration, one would like to think that arbitrators know how to develop tools that will meet the expectations of both parties, that they will know how to formulate rules that are based on the legal systems of both parties.

The existence and acceptance of different legal systems also makes it necessary to ask questions: when my daughter raises the issue of rationality of the rules at Annie's house to challenge the rules that we have imposed on her, our rules must be justified. A certain thought process then comes into play: why did we decide that she had to be home by 8:00? Was it to protect her or rather out of a desire for efficiency on the part of busy parents who wish to ensure that their children bathe and go to bed early so they could relax and enjoy their evening? Was this arbitrary? Was it simply because it was the rule imposed on us when we were children?

This exercise allows us to think more about family organization and the interaction between the interests of children and their parents. In other words, legal pluralism makes it possible to raise questions in each legal system. It is this questioning that gives us an opportunity to better understand why the rule exists and occasionally to adjust the balance between the interests at stake. This questioning can sometimes seem threatening - since it involves a challenge of (parental) authority. However, it is a necessary and valuable exercise.

The Law Commission of Canada's mandate is to reform the law while reflecting Canadian bijurism. Therefore, it has a mandate to respect the specific nature of Canadian pluralism. Furthermore, it explores how legal pluralism may be a source from which Canadian law can enrich itself and ensure respect for Canadian cultural and social diversity. We invite you to consult our work on governance, which explores this topic in greater detail, on our web site at www.lcc.gc.ca.