In my last post, I mentioned the role of the European Union (EU) as a vehicle to converge civil and common law. Today, I am going one step further by discussing whether the EU can be considered a mixed legal system. On the one hand, such a classification may seem evident. On the other hand, it is quite unusual to describe a transnational system as a mixed jurisdiction. So the question is whether the EU can be classified as a mixed legal system. If yes, EU law could draw inspiration and learn from the way things are handled in mixed jurisdictions.
Mixed jurisdictions traditionally combine common and civil law elements in an obvious way. Usually common law takes charge of public law, while civil law governs the private law side. While this definition is very simplistic and does not do right to the diversity among non-traditional mixed jurisdictions, it will serve the purposes of this post – determining whether the EU meets the standards of a mixed legal system.
So does the EU combine civil law and common law in an obvious way? According to a previous post, civil law is characterized by more generalized, codified laws, while common law distinguishes itself by rather specialized case law. Prima facie, the EU has a large body of treaties and regulations that may be seen as codes. Its law is also further shaped by case law by the European Court of Justice (ECJ). Thus, the EU merges civil law and common law elements. Decisions by the ECJ, however, resemble more interpretative decisions by civil law courts than creative rulings by common law courts.
Consequently, the EU does not fulfill this first criteria and can therefore not be considered a mixed jurisdiction in the traditional sense. Instead, the EU is a brainchild of civil law countries that was assigned to the few common law members. This situation is the exact opposite of the way mixed legal systems historically developed. In that regard, mixed jurisdictions may still help in resolving issues of reception of EU law in common law member countries.
- Valentine Vernon Palmer, Mixed Jurisdictions … and the Myth of Pure Laws, 67 LA L. REV. 1206-1218 (2007).
- Colin B. Picker, International Law’s Mixed Heritage: A Common/Civil Law Jurisdiction, 41 VANDERBILT TRANSNAT’L L. REV. 1083-1138 (2008).
- William Tetley, Mixed Jurisdictions: Common Law vs. Civil Law (Codified and Uncodified), 60 LA L. REV. 618-738 (2000).