Are mixed legal systems necessarily systems in transition, or can they achieve stability?

Table of Contents

1 Introduction

2 How do mixed legal systems come into being?

3 Why mixed legal systems could melt into purely Civil or Common Law systems

4 Why mixed legal systems could remain mixed and not melt into either pure Common Law (or Civil Law) systems

5 Potential of mixed legal systems as creative sources of their own distinctive type of rules

6) Conclusion

Bibliography

1 Introduction

Mixed legal systems such as those of Scotland and South Africa^[1], distinguish themselves from the classical Common Law and Civil Law systems by a combination of aspects from both traditional families. That is why they are also known as “hybrid systems”^[2] or “pluralistic jurisdictions”^[3] and embody a third^[4] legal family^[5]. According to Du Plessis^[6] and Palmer^[7] for instance, the mere presence of both, Common and Civil law aspects does not suffice^[8]. They request a sufficient prominence of both elements in order to speak of a “mixed legal system in a narrower sense”, whereas the aspect of bilingualism, the occurrence of more than one language, in a legal system is regarded more as a feature than a criterion^[9].

But however one carries out the classification of mixed legal systems, their sheer existence very soon gives rise to the need to inquire about their development, if there is any. The fact that mixed legal systems predominantly developed by an inclusion of Common law features into structural and procedural areas, while the substantial law consists of separate patterns of Civil and Common law^[10], gives rise to the question if they constitute a true third legal way rather than suffer an existence as a hybrid and imperfect existence in between the both prominent legal ways of Common and Civil law with a tendency to adopt finally the one or the other legal way completely^[11].

Still, hybrid systems to not form a homogenous group providing uniform answers for certain questions. Because of their cultural and geographical isolation^[12], they sometimes give quite similar answers to legal questions and then again the solutions diverge considerably in their approaches^[13].

This paper is aimed at presenting why, in my opinion, mixed legal systems are not likely to be in a transitory stage in either the Civil or Common law direction and will not end up as one of the two “classical” legal ways. Rather, they will extend their borrowing and transplanting effort and strive for the “perfect rule” among the available rules in existing Civil law just as all Common law systems do if they do not in a specific area come up with a striking and creative new solution. This awards them a great potential to serve as a role-model when harmonization and unification of law is on the agenda or when the two classical eurocentric legal families have reached stagnation and need inspiration.

2 How do mixed legal systems come into being?

There are three major of ways in which a mixed legal system can be “born”^[14].

Most common is the birth of a mixed legal system as a product of failed colonialism where a culture was imposed by a colonialist power, but where a native culture persisted to some degree^[15]. A lot of African countries are examples.

A successive colonialization or occupation is another possibility for the birth of a pluralistic jurisdiction. Prominent examples of this are Lousiana and Québec which both experienced a clash between the English and French system at a stage^[16] and South Africa where the English and Roman-Dutch legal cultures clashed^[17].

Countries of both those categories are predominantly situated on the trade routes of the 17th and 18th century Europeans. After the introduction of Civil Law and some hundred years later the arrival of Common Law, those countries, developing in cultural or territorial diversity, became then mixed systems^[18]. Remarkable is that the adoption of Common Law elements is attributed to the political supremacy of the Anglo-American tradition rather than being adopted by voluntarily reception^[19].

A third category is formed by those countries which experienced commercial and industrial development relatively late and therefore drew a lot of their legal input from other systems because they seemed more sophisticated^[20]. Greece, Japan and Turkey are representatives of this category.

Scotland is a country which does not have a colonial past, nor is it an economic “late bloomer” but which still developed into a mixed system^[21]. Until the beginning of the nineteenth century Scots private law resembled that of an uncodified Civilian system^[22]. From then on it was developed in a more casuistic direction by lawyers and courts, following English law and precedents^[23] which, also due to the political union with England, suffused Civilian foundations over time and by doing this, pursued the general tendency in Civil Law Europe except for the fact that it never completely gave up Civilian influences^[24]. Whether Scots law therefore is a result of a deliberate choice of the “best rule”^[25] or rather depicts the Scottish history of foreign influence^[26] and, to a certain degree, control^[27], is debatable.

The method of borrowing^[28] and transplanting contributes to modern mixed legal systems^[29]. These systems took advantage of the basic possibility to choose from the rules of different systems in order to figure out and employ the “best”^[30] for their own purposes^[31]. Remarkable is however that borrowing does not by any means ensure similarity^[32]. A legal rule rather unfolds completely different when transplanted into a differently environment of existing rules.

Another general factor during the coming into being process of a hybrid system is marked by law students^[33] and academics going abroad and returning with ideas and influences from another legal system in their luggage and then exercising their legal profession and of course also making use of those influences^[34]. South Africa, for example, through the Alexander von Humboldt-Stiftung^[35] drew a lot of its continental influences from Germany while there was also a strong “traffic” of legal scholars between South Africa and The Netherlands during the apartheid years.

[...]

^[1] Other examples are Québec, Cameroon, Cyprus, Sri Lanka, Louisiana, the Philippines, Greece and Israel. A 2005 survey, the Ottawa study, concluded that from the worldwide analyzed 232 jurisdictions, mixed legal systems form the largest family. The survey is available on http://www.droitCivil.uottawa.ca/world-legal-systems/eng-monde.html.

^[2] Derived from the Latin noun „hybrida“ which means “crossbreed”.

^[3] Ogus “The Contribution of Economic Analysis of Law to Legal Transplants” in The Contribution of Mixed Legal Systems to European Private Law 2001 35.

^[4] Apart from the prominent and eurocentric main division in Civil Law and Common Law systems and therewith the classification of mixed legal systems as a third group, also other legal families or traditions such as Talmudic, Islamic, Hindu, Asian, Nordic, and Oriental are recognized.

^[5] The term “legal family” was introduced by Zweigert & Kötz. According to Jaques Du Plessis who in his contribution ”Comparative Law and Mixed Legal Systems“ to the publication Reimann & Zimmermann (eds) The Oxford Handbook of Comparative Law (Oxford 2006) on page 480 describes a legal family as a classifying instrument which serves the coherent explanative purposes towards the realization of similarities and differences of particular legal systems and the realization of developments of such systems. The latter purpose becomes especially relevant in the scope of this paper.

^[6] Du Plessis “Comparative Law and Mixed Legal Systems” 483 et seq.

^[7] Palmer ”Introduction to the Mixed Jurisdictions“, Mixed Jurisdictions worldwide: The third legal Family, Palmer (ed) 2001 3-15.

^[8] as Visser in his 2003 78 (1&2) Tulane Law Review article “Cultural Forces in the Making of Mixed Legal Systems” on page 46, puts it: “In one sense most of, if not all, the legal systems of the Western World are mixed, as almost any system that one cares to single out has been built up from a variety of disparate sources”.

^[9] although language, according to Evans-Jones in his contribution “Civil Law in the Scottish Legal Tradition” to The Civil Law Tradition in Scotland (1995) on page 6 in case of the Scottish the accessibility of English law because of the same language has played a crucial role and would not have spread so easily if there had been a language barrier. A similar observation can be made when examining the South African law where the Boer republics of the Orange Free State and the Transvaal only after the Anglo-Boer Wars in the end of the 19th and beginning of the 20th century started mixing Common and Civil law.

^[10] According to a widespread view, represented by Kenneth G. C. Reid in his article “The Idea of Mixed Legal Systems” (2003) 78 (1&2) Tulane Law Review 21 et seq, a truly mixed legal system in the narrower sense requires mixedness at (at least) three levels: When distinguishing substantive rules of the system and methodology, the substantive rules appear predominantly civilian, whereas the methodology is predominantly drawn from the Common law. The public law rules have derived from the Common law tradition whilst private law is coined by Civil law influences. Going more into detail, property law is civilian in all mixed jurisdictions, commercial law, the law of unjustified enrichment and the law of delict (tort) is based on the Common law, while contract law is a really mixed branch. Another significant factor is that the Civil law patterns which can be detected in a mixed legal system are of varying degrees of antiquity because they did not develop further, but lost touch with contemporary Civil law when Common law first rose to prominence.

^[11] As nowadays Evans-Jones, for instance, argues (infra page 4 et seq).

^[12] Du Plessis “Comparative Law and Mixed Legal Systems”, 479.

^[13] Ibid, 494.

^[14] Ogus “The Contribution of Economic Analysis of Law to Legal Transplants” 35 et seq.

^[15] Reid Tulane Law Review 2003 7.

^[16] Ogus “The Contribution of Economic Analysis of Law to Legal Transplants” 36.

^[17] “The Preservation of the Civilian Tradition in ‚Mixed Jurisdictions’“ in Civil Law in the Modern World, Baton Rouge 1965 chapter 1.

^[18] Reid, Tulane Law Review 2003 7, who also indicates that this principle is not applicable to Israeli law which developed unlike most other mixed legal systems.

^[19] Smith Studies Critical and Comparative (1962) 92; Reid Tulane Law Review 2003 14; Du Plessis “Comparative Law and Mixed Legal Systems” 495.

^[20] Ogus “The Contribution of Economic Analysis of Law to Legal Transplants” 36.

^[21] Although Scotland is not the only one: The Channel Islands, according to Reid in his journal article “The Idea of Mixed Legal Systems” in the 2003 Tulane Law Review 78 (1&2) also has a mixed system although situated far from trade routes and it does not fit properly into the scheme of economic “later bloomers”.

^[22] Evans-Jones Law Quarterly Review 1998 23.

^[23] Rodger “Thinking about Scots Law” (1996) 1 Edinburgh Law Review 13.

^[24] Ibid 14.

^[25] eg Smits infra fn 79.

^[26] Evans-Jones “Receptions of Law: Mixed Legal Systems and the Myth of the Genius of Scots Private Law” (1998) Law Quarterly Review 228 et seq.

^[27] The Catholic Church for instance exerted a more than merely religious influence on Scotland. It influenced the whole social life.

^[28] Borrowing in mixed legal systems mostly occurs from Common law sources. Borrowed doctrines from Civil law are rare exceptions. Interestingly, borrowing never takes place between individual hybrid systems.

^[29] The opinion followed in this paper is the one of Alan Watson who regards legal borrowing and transplanting not only as a phenomenon which takes place, but as the most important source of change in the Western legal tradition. Pierre Legrand contradicts when refuting the idea of legal transplants. In his opinion, they don’t exist because every legal rule requires its specific historic-cultural context to live and without his, it is meaningless and thus worthless for a comparative lawyer to examine. But this opinion draws a too harsh consequence which is not followed because it does not enlighten why some minor changes in meaning by a transplantation to a new legal environment has necessarily to have the radical consequence that only a “pall of words” remains.

^[30] The classification as the “best“ rule, of course is affected by a great amount of subjectivity and depends on the situation. Not always is the choice a mixed systems makes retrospectively still the optimum one. As Du Plessis in his contribution “Comparative Law and Mixed Legal Systems” to the publication The Oxford Handbook of Comparative Law on page 495 puts it: “One will simply have to accept that mixed systems, like other systems, at times may get it right, and at times may get it wrong”.

^[31] Weir, Zeitschrift für Europäisches Privatrecht 1998, 573.

^[32] Ibid, 574. „A cat cannot sing just because it has swallowed a canary“, as Weir quotes Reiners, Die Kunst der Rede und des Gesprächs (3rd edition 1959), p 58.

^[33] A Scottish example is the one of the ERASMUS scheme: At the University of Aberdeen, for instance, a fifth of every class spend up to a year of their studies at one of the partner universities. In addition, the university offers LL.B. programmes where Scots law is combined with either German, French or Spanish law and the correspondent medium of instruction (source: Evans-Jones, “Civil Law in the Scottish Legal Tradition”, 10).

^[34] The USA marks the most prominent example of a nation highly frequented by young legal personnel from other jurisdictions. In England, contradicting this general trend, Cambridge Law School quit teaching Scots Law, as Tony Weir in his 1998 journal article “Divergent legal systems in a single member state” in the Zeitschrift für Europäisches Privatrecht on page 572 states.

^[35] a regular bursary which enables a large number of South African scholars to study abroad in Germany, see http://www.humboldt-foundation.de/en/index.htm.