This paper is aimed at presenting why, in the author’s 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.
Inhaltsverzeichnis (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
Zielsetzung und Themenschwerpunkte (Objectives and Key Themes)
This paper aims to explore the development of mixed legal systems, such as those of Scotland and South Africa, and challenge the idea that they are simply transitional systems moving towards either pure Civil or Common law. The paper argues that mixed legal systems have the potential to develop their own distinct legal identity, rather than merging into one of the two dominant legal traditions.
- The nature and origins of mixed legal systems
- The potential for mixed legal systems to merge into either Civil or Common law systems
- The possibility of mixed legal systems maintaining their hybrid character and developing distinct rules
- The role of mixed legal systems in legal harmonization and unification
- The potential for mixed legal systems to act as a source of legal innovation
Zusammenfassung der Kapitel (Chapter Summaries)
- Chapter 1: Introduction This chapter introduces the concept of mixed legal systems, defining them as systems that combine elements of both Civil and Common law traditions. It highlights the importance of understanding the development of these systems and challenges the notion that they are merely transitional stages towards either Civil or Common law.
- Chapter 2: How do mixed legal systems come into being? This chapter explores the various ways in which mixed legal systems can emerge, focusing on three main categories: failed colonialism, successive colonization or occupation, and late commercial and industrial development. The chapter examines specific examples, including countries in Africa, Louisiana, Québec, South Africa, Greece, Japan, and Turkey.
- Chapter 3: Why mixed legal systems could melt into purely Civil or Common law systems This chapter explores the factors that could lead to mixed legal systems merging into either Civil or Common law systems. It discusses arguments based on the potential influence of political dominance, historical context, and the desire for legal certainty and harmonization.
- Chapter 4: Why mixed legal systems could remain mixed and not melt into either pure Common law (or Civil law) systems This chapter presents arguments against the notion that mixed legal systems are inherently transitional. It explores the potential for mixed systems to retain their hybrid character and develop their own unique legal rules and principles. The chapter highlights the role of cultural and historical factors in shaping legal development and the potential for mixed legal systems to serve as sources of legal innovation and adaptation.
- Chapter 5: Potential of mixed legal systems as creative sources of their own distinctive type of rules This chapter delves into the potential of mixed legal systems to serve as creative sources of their own legal rules and principles. It argues that mixed systems can benefit from the interaction of different legal traditions, leading to the development of unique solutions to legal problems. The chapter emphasizes the role of mixed legal systems in legal harmonization and unification, especially in a context of global legal convergence and the need for innovative legal solutions.
Schlüsselwörter (Keywords)
The paper focuses on mixed legal systems, exploring their development and potential for stability and innovation. Key themes include legal families, legal transplants, hybrid legal systems, legal harmonization, legal unification, comparative law, and legal history. It examines specific examples such as Scotland, South Africa, Louisiana, Québec, and other jurisdictions influenced by both Civil and Common law traditions.
- Quote paper
- Miriam Nabinger (Author), 2006, Are mixed legal systems necessarily systems in transition, or can they achieve stability?, Munich, GRIN Verlag, https://www.grin.com/document/87044