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).
Recently, the Florida Senate passed a bill restricting the choice and applicability of foreign law in a certain set of cases. According to this bill, a court would not apply foreign law that contravened Florida strong public policy. Such “foreign law bans” have raised severe criticism or at least strong skepticism. In fact, the scope of the bill is limited to family law cases and intends to clarify existing case law. Most critics see the bill as an affront against foreign law in general, and Sharia law in particular.
Now, as a lawyer that has also studied conflict of laws in civil law countries, I am familiar with the ordre public exception. In cases, where conflict of laws rules lead to the applicability of foreign law, a court has to examine whether such foreign law violates the ordre public (public order). In Germany, my native country, the ordre public exception is applied to inheritance cases that involve Sharia law and would discriminate against a woman’s fundamental right of economic equality (gender discrimination). It is, however, important to note that here the ordre public exception is case-specific and not a general exclusion of, say, Sharia inheritance law. Also, when a law has been deemed inapplicable because it was contrary to German law, it does not mean that German law automatically applies to the case. Instead, a judge has to create a new legal norm that no longer discriminates, but that also takes into consideration the legal philosophy of the law that would normally be applicable (i.e. Sharia law).
Well, this is a complicated procedure and requires a German judge to have quite some cultural finesse. Thus, in Great Britain, the legal community has taken a different approach. There, the Law Society, which represents solicitors in England and Wales, has published guidelines that are aimed at clarifying Sharia succession rules for British courts. Of course, such a step has also raised quite some criticism.
So here we have three different approaches to a similar problem. A problem that will become more and more common as people from different cultural backgrounds interact with each other and legal cultures clash or converge. It would be interesting to know – not only from a standpoint of comity – how similar situations, e.g. inheritance cases governed by Western law, are treated in countries where Sharia law usually regulates family law.
Now, that I have established the basics in comparative law methodology, it is time to bring everything together. Therefore, in this post, I will illustrate what steps a comparative law study should follow.
Preliminary Step: Determine the Scope
Typical questions to ask are: How far shall the comparison go? Shall it encompass all legal systems of the world or only a subset of them? Shall it compare a whole legal systems or only specific legal issues? There is no given answer as to which scope to choose. It all depends on your personal strategic goals and resources.
First Step: Get a Concept
Typical questions to ask are: Shall the comparison be intra- or cross-cultural? What legal aspects are to be compared: structures, institutions, functions? At this point, I would also decide what comparative methodology to apply, i.e. functionalism, comparative law and economics, comparative cultures, or a combination thereof.
Second Step: Describe the Data
Now is the moment to compile factual research. Again, it is a matter of personal choice whether to focus on hard facts (e.g. norms) or soft issues (e.g. socio-economic problems). At this point, however, a proper classification is indispensable.
Third Step: Identify Similarities/Differences
Based on the data gathered during the previous step, one can now juxtapose all the similarities and differences found in step two.
Fourth Step: Explain Similarities/Differences
This phase probably depends most on the exact methodology chosen for the comparative work.
Fifth Step: Confirm the Theory
The final step of a comparative study should consist of some generalized statement. Usually, such a statement will formulate a suggestion for improvement or it would demonstrate the general applicability of the study.
Esin Örücü, Methodology of comparative law, in ELGAR ENCYCLOPEDIA OF COMPARATIVE LAW 442-454 (Jan M. Smits 2006).