So far, my posts gave an introduction to traditional comparative law. In this form, comparative law represents a rather esoteric legal discipline. Its main focus and methodology aim at the civil-common-law-divide. In a world where China and other Asian countries play a major part in the global economy, and where the internet provides a unique platform for trans-cultural exchange, such a narrow focus is no longer viable. Now more than ever is the time to broaden the horizons and to incorporate new methods from other disciplines. My subsequent posts will focus on whether and how comparative law is adapting to the challenges of the modern world.
Mixed Legal Systems
South Africa, Louisiana, Quebec, Cyprus … What do all these countries have in common? They all are so-called mixed jurisdictions or mixed legal systems – both terms are either used interchangeably or the former being part of the latter.
What are Mixed Legal Systems?
Traditionally, mixed legal systems have three key attributes:
(1) Fusion of Civil and Common Law: “Mixed” indicates some type of amalgam of common law and civil law elements.
(2) Adequacy of Civil and Common Law Elements: 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: 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. According to Professor Palmer, this can usually 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,normally did not touch the already existing law, but naturally introduced their system of administration.
Assessment of Mixed Legal Systems
The traditional definition of mixed legal systems is more and more challenged. The growing awareness of non-western law that does not fit the typical common law – civil law divide, has made comparative law research focus on alternative ways to define mixed legal systems. As with the question of classification in general, legal traditions have been considered as a defining criteria.
- Sean Patrick Donlan, Comparative Law and Hybrid Legal Traditions: an Introduction, in COMPARATIVE LAW AND HYBRID LEGAL TRADITIONS 9-18 (Eleanor Cashin-Ritaine, Sean Patrick Donlan & Martin Sychold eds., 2010).
- H. Patrick Glenn et al. eds., STUDIES IN LEGAL SYSTEMS: MIXED AND MIXING (1996).
- 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).
- Kenneth Reid, The Idea of Mixed Legal Systems, 78 TUL. L. REV. 5-40 (2004).
- William Tetley, Mixed Jurisdictions: Common Law vs. Civil Law (Codified and Uncodified), 60 LOUISIANA L. REV. 618-738 (2000).
The Past and Present Dangers of Legal Families
When I was reading up on the different ways to cluster legal systems, I came across an interesting article. In his contribution on Legal Families, Jaako Husa illuminates the origins of the legal family concept. And some of these origins are quite sobering. In particular, in 1913, Georges Sauser-Hall came up with race as a classification criteria. According to Sauser-Hall, legal systems could be divided into three groups: the Aryan or Indo-European laws, the Semitic or Mongolic laws (mostly Asian laws) and the Barbaric laws (mainly African laws).
Luckily, this kind of classification did not make it into mainstream comparative law. It illustrates, however, that comparative lawyers have to be very careful how they conduct their research. It may not be as obvious as the above-mentioned example. Nevertheless, in every lawyer there is an inherent bias towards the own law which comparative lawyers have to overcome (as much as possible). Additionally, as comparative law is most popular in Europe, there seems to be a clear focus on Western legal systems which, of course, leaves out the rich and enriching area of Asian, African, and indigenous laws in general.
Jaakko Husa, Legal Families, in ELGAR ENCYCLOPEDIA OF COMPARATIVE LAW 382, 385 (Jan Smiths ed., 2006).