Mixed Legal Systems Definition

Traditionally, mixed legal systems have three main characteristics: 5 Potential of mixed legal systems as creative sources of their own type of rules The term “mixed” that we have chosen over other terms such as “hybrid” or “composite” should not be interpreted restrictively, as some authors have done. This category therefore includes political entities in which two or more systems apply cumulatively or interactively, but also entities in which the systems are juxtaposed due to more or less clearly defined fields of application. However, hybrid systems do not form a homogeneous group that provides uniform answers to certain questions. Because of their cultural and geographical isolation,[12] they sometimes give fairly similar answers to legal questions, and then the solutions differ considerably in their approaches.[13] [18] Reid, Tulane Law Review 2003 7, which also points out that this principle does not apply to Israeli law, which has evolved unlike most other mixed legal systems. Another general factor in the process of creating a hybrid system is characterized by the fact that law students[33] and academics go abroad and return with ideas and influences from another legal system in their baggage, then continue their legal profession and, of course, also use these influences.[34] South Africa, for example, derived much of its continental influences from Germany through the Alexander von Humboldt Foundation,[35] while during apartheid there was also a strong “trade” of jurists between South Africa and the Netherlands. [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” for the publication Reimann & Zimmermann (ed.), The Oxford Handbook of Comparative Law (Oxford 2006) at page 480 describes a family of laws as a classification instrument that serves coherent explanatory objectives for the realization of the similarities and differences of certain legal systems and for the realization of the developments of these systems. The latter objective becomes particularly relevant in the context of this article. [7] Palmer “Introduction to the Mixed Jurisdictions,” Mixed Jurisdictions worldwide: The third legal Family, Palmer (ed) 2001 3-15. [29] The view expressed in this paper is that of Alan Watson, who views legal borrowing and transplantation not only as a phenomenon that is occurring, but also as the most important source of change in Western legal tradition. Pierre Legrand disagrees when he refutes the idea of legal transplants.

According to him, they do not exist because each legal norm needs its specific historical-cultural context to live, and without it, it is meaningless and therefore useless for a comparative jurist to examine them. But this opinion draws too harsh a consequence, which is not followed, because it does not clarify why certain minor changes of meaning by transplantation into a new legal environment must necessarily have the radical consequence that only a “network of words” remains. The countries of both categories are mainly located on the trade routes of Europeans in the 17th and 18th centuries. After the introduction of civil law and a few hundred years later the arrival of common law, these countries, which developed in cultural or territorial diversity, became mixed systems[18]. It should be noted that the adoption of common law elements is attributed to the political dominance of the Anglo-American tradition rather than by voluntary reception.[19] (2) Adequacy of civil and customary elements: civil and common law contributions must be substantial and recognizable as such by the legal community. [8] As Visser says in his 2003 article 78 (1&2) Tulane Law Review “Cultural Forces in the Making of Mixed Legal Systems” at page 46: “In a sense, most, if not all, legal systems in the Western world are mixed, since almost all the systems one wants to distinguish have been constructed from a variety of different sources.” The traditional definition of mixed legal systems is increasingly being challenged. The growing awareness of non-Western law, which does not fit the typical division between common law and civil law, has led comparative law research to focus on other ways of defining mixed legal systems. As with the question of classification in general, legal traditions were considered to be the determining criterion. Mixed legal systems such as those in Scotland and South Africa[1] differ from the classical common law and civil law systems in a combination of aspects of both traditional families.

This is why they are also called “hybrid systems”[2] or “pluralistic jurisdictions”[3] and embody a third legal family[4][5]. For example, according to Du Plessis[6] and Palmer[7], the mere existence of both customary and civil aspects is not enough[8]. They called for sufficient emphasis on these two elements to speak of a “mixed legal system in the strict sense,” while the aspect of bilingualism, that is, the appearance of more than one language, is perceived in a legal system as a characteristic rather than a criterion.[9] [1] Other examples include Quebec, Cameroon, Cyprus, Sri Lanka, Louisiana, the Philippines, Greece and Israel. A 2005 survey, the Ottawa Study, concluded that of the 232 jurisdictions analyzed worldwide, mixed governments are the largest family. The survey is available on www.droitCivil.uottawa.ca/world-legal-systems/eng-monde.html. [4] In addition to the important and Eurocentric main division in civil law and common law and thus the classification of mixed legal systems as the third group, other legal families or traditions such as Talmudic, Islamic, Hindu, Asian, Nordic and Eastern are also recognized. [28] Borrowing in mixed jurisdictions is primarily from common law sources. Lessons learned from civil law are rare exceptions. Interestingly, borrowing never takes place between individual hybrid systems. 3 Why mixed legal systems might merge into pure civil law or common law systems [34] The United States is the most striking example of a nation heavily frequented by young lawyers from other jurisdictions. In England, contrary to this general trend, Cambridge Law School has ceased to teach Scottish law, as noted by Tony Weir in his 1998 article “Divergent legal systems in a single member state” in the Zeitschrift für Europäisches Privatrecht at page 572.

4 Why mixed legal systems could remain mixed and not merge into pure common law (or civil law) systems Scotland is a country that has neither a colonial past nor an economic “late flowering”, but has nevertheless developed into a mixed system.[21] Until the early nineteenth century, Scottish private law resembled that of an uncodified civil system.[22] From then on, it was developed by lawyers and courts in a more casuistic direction, following English law and precedents,[23] which, also due to the political union with England, penetrated over time the civil foundations, thus following the general trend of European civil law, with the fact that it never completely abandoned civil influence.[24] Whether Scots law is therefore the result of a conscious choice of the “best rule”[25] or rather represents the Scottish history of foreign influence[26] and, to some extent, control[27] is controversial. [30] The classification as “best” rule is, of course, characterized by a high degree of subjectivity and depends on the situation. In retrospect, the choice of a mixed system is not always optimal. As Du Plessis puts it in his article “Comparative Law and Mixed Legal Systems” for The Oxford Handbook of Comparative Law at page 495: “It will simply be necessary to accept that mixed systems, like other systems, can sometimes do good and sometimes evil.” [21] Although Scotland is not alone: the Channel Islands also have a mixed system, according to Reid in his newspaper article “The Idea of Mixed Legal Systems” in Tulane Law Review 78 (1&2) of 2003, although it is far from trade routes and does not fit properly into the model of economic “laggards”. However, there is a significant difference of opinion on the actual meaning and components of a mixed system. Scholars of the “mixed jurisdiction” tradition, following in the footsteps of early British comparatists (see section 17.2 below), tend to limit their scope to a single type of hybrid where the most comprehensive research has been conducted – the common law and civil law mixtures.