A little off the topic of construction law. A recent post by Simon Chester at slaw.ca discusses Professor Peter McCormick’s work – specifically his book, Supreme at Last: The Evolution of the Supreme Court of Canada – on the sources of authority cited by the Supreme Court of Canada in their decisions: http://www.slaw.ca/2010/01/27/65-years-of-change-in-what-the-supreme-court-cites/.
The post points out a few things, including the unequivocal shift away from English common law: “Canadian law has become itself, and is free-standing as a body of law; less and less is there a Commonwealth or even a global common law“; “English law has consistently declined and really stopped being a dominant source at the time of the Laskin Court”. Slaw provides a few very handy charts which help digest the annual SCC citation data by the numbers and show the clear trends.
The trend away from English law arguably has varying causes and significances (e.g. in the context of national identity and sovereignty), but a tangential issue I’m not sure anyone has addressed is the impact of diverging streams of common law on international trade.
Of course, in a market climate which at a glance is more globalized than at any point in history it may seem silly to be concerned about barriers to trade. And regardless of conflict of laws if there are market opportunities people will tend to find a way. But have diverging streams of common law contributed at all to inefficiencies? Increased chances of litigation of international arrangements? Prevented investment, enterprises or projects that otherwise would have occurred? Affected relationships with trading partners? Choice of trading partners?
Or, have Commonwealth divergences in the common law been more pronounced in areas of the law less likely to impact trade than others (e.g. criminal law as opposed to the law of contracts)?
While an increasingly made-in-Canada body of law has clearly positive significance for issues like sovereignty, it’s hard to see how increasingly idiosyncratic bodies of domestic jurisprudence diverging from a more uniform base can do anything but introduce inefficiencies – whether or not those inefficiencies have been compensated for by increased efficiencies elsewhere. Admittedly, it would be hard to introduce any meaningful valuations into this analysis (what is the economic value of national sovereignty?) and I am not an economist.
The question I am asking is utilitarian I suppose: What is the net social benefit of jurisprudential idiosyncrasy?
Thoughts?
A body of law to call our own in the age of globalization
A little off the topic of construction law. A recent post by Simon Chester at slaw.ca discusses Professor Peter McCormick’s work – specifically his book, Supreme at Last: The Evolution of the Supreme Court of Canada – on the sources of authority cited by the Supreme Court of Canada in their decisions: http://www.slaw.ca/2010/01/27/65-years-of-change-in-what-the-supreme-court-cites/.
The post points out a few things, including the unequivocal shift away from English common law: “Canadian law has become itself, and is free-standing as a body of law; less and less is there a Commonwealth or even a global common law“; “English law has consistently declined and really stopped being a dominant source at the time of the Laskin Court”. Slaw provides a few very handy charts which help digest the annual SCC citation data by the numbers and show the clear trends.
The trend away from English law arguably has varying causes and significances (e.g. in the context of national identity and sovereignty), but a tangential issue I’m not sure anyone has addressed is the impact of diverging streams of common law on international trade.
Of course, in a market climate which at a glance is more globalized than at any point in history it may seem silly to be concerned about barriers to trade. And regardless of conflict of laws if there are market opportunities people will tend to find a way. But have diverging streams of common law contributed at all to inefficiencies? Increased chances of litigation of international arrangements? Prevented investment, enterprises or projects that otherwise would have occurred? Affected relationships with trading partners? Choice of trading partners?
Or, have Commonwealth divergences in the common law been more pronounced in areas of the law less likely to impact trade than others (e.g. criminal law as opposed to the law of contracts)?
While an increasingly made-in-Canada body of law has clearly positive significance for issues like sovereignty, it’s hard to see how increasingly idiosyncratic bodies of domestic jurisprudence diverging from a more uniform base can do anything but introduce inefficiencies – whether or not those inefficiencies have been compensated for by increased efficiencies elsewhere. Admittedly, it would be hard to introduce any meaningful valuations into this analysis (what is the economic value of national sovereignty?) and I am not an economist.
The question I am asking is utilitarian I suppose: What is the net social benefit of jurisprudential idiosyncrasy?
Thoughts?