In a previous post, I discussed different ways of classifying the legal systems of the world. What I have not yet talked about are legal systems that historically fit in more than one group. You may have already heard of so-called mixed jurisdictions. Yet, what does this term really mean? And what countries fall into that category? This post will give you a quick overview.
South Africa, Louisiana, Quebec, Cyprus … What do all these countries have in common? They all are so-called mixed jurisdictions. According to Professor Palmer, mixed jurisdictions have three key attributes:
(1) Fusion of Civil and Common Law
The term “mixed” indicates some type of amalgam of common law and civil law elements. This suggests the coarse distinction between civil law countries and common law countries as the underlying classification method. [For a presentation of this and other classification methods, see my previous post.]
(2) Adequacy of Civil and Common Law Elements
After reading the first key element of a mixed jurisdiction, some of you might think: “Wait a minute … aren’t somehow most of the legal systems nowadays mixed given the current degree of international harmonization of laws?” Well, not quite. In order to really be considered a mixed jurisdiction, contributions of both civil law and common law have to be substantial and recognizable as such to the legal community.
(3) Structural Divide of Common Law and Civil Law
This is an interesting observation. Professor Palmer notes that a key characteristic of all mixed jurisdictions is that private law seems to be dominated by civil law elements, whereas public law consists basically of common law elements. In most cases, this can be ascribed to historical events. Many mixed jurisdictions are former French colonies strongly influenced by the French Code Civil. Later, these colonies fell into British hands. The British, however, usually did not touch the already existing law, but naturally introduced their system of administration.
For further reading suggestions, please see the footnotes below. I would also like to refer to the website of the World Society of Mixed Jurisdiction Jurists where you can find further materials on selected mixed jurisdictions.
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Suggested Reading
- Vernon Valentine Palmer, Mixed Jurisdictions, in ELGAR ENCYCLOPEDIA OF COMPARATIVE LAW 467-474 (Jan Smits ed., 2006).
- Vernon Valentine Palmer ed., MIXED JURISDICTIONS WORLDWIDE, THE THIRD LEGAL FAMILY (2001).
- H. Patrick Glenn et al. eds., STUDIES IN LEGAL SYSTEMS: MIXED AND MIXING (1996).
- Kenneth Reid, The Idea of Mixed Legal Systems, 78 TUL. L. REV. 5-40 (2004).
