Mixed Legal Systems in a Cultural-Traditional Context

In my previous post about mixed legal systems, it became evident that the conventional definition of a mixed legal system is influenced by Western ideas of a division of legal systems into two groups: civil law countries and common law countries. Such a concept is insufficient for the growing importance of non-Western law in today’s global community. Both Patrick Glenn’s idea of legal traditions and Csaba Varga’s concept of legal culture try to break with convention in order to make more remote legal systems workable for comparative law. The question is whether and how they deal with mixed legal systems.

Patrick Glenn in his Legal Traditions of the World, deals with the civil law tradition and the common law tradition in two different chapters. His focus is, however, more on their different roots that led to two different methodologies than their mixing. As a result, mixed legal systems are rather neglected.

Csaba Vargas’ starting point, in turn, is the heterogeneity of laws. For him, legal systems are intrinsically diverse. Consequently, any classification into any specific group – it being civil, common, or mixed – is artificial in nature and only serves to facilitate the comparative task.


  • PATRICK GLENN, LEGAL TRADITIONS OF THE WORLD (2004). A newer edition is available.
  • William Twining et al., A Fresh Start for Comparative Legal Studies? A Collective Review of Patrick Glenn’s Legal Traditions of the World, 2nd Edition, 1 Journal of Comparative Law 100-199 (2005).

The European Union as a Mixed Legal Sytem

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).


Are All Legal Systems “Mixed Legal Systems”?

Under the traditional definition of mixed legal systems, only a few countries would qualify. With the more recent discussion of legal traditions in comparative law and the application of legal pluralism, however, the concept of mixed legal systems may become too broad. If norms, such as cultures and traditions, are to be considered in the classification process, would not all legal systems be somehow “mixed”?

Laws Are Transferred

Most laws are influenced by others – that is the underlying theory behind the concept of legal families. Legal traditions emphasize this link between past and present, yet extend it even further to include ‘the content and flow of large bodies of normative information over time and over space’ (P. GLENN, infra). Seen this way, the term law covers not only positive law or state law, but also non-state law, like social norms.

Mixed Legal Systems – A Separate Legal Family?

The question is then whether mixed legal systems should be considered as a legal family, next to – or in between – the common law and the civil law families. Such a situation appears unsatisfactory for two reasons: First, there is evidence that the strict distinction between common law and civil law countries might become somewhat more flexible, especially in the European context. For example, civil law courts have to respect and take into account decisions by European courts, whereas common law countries have to incorporate European legislation. As a consequence, the categorization into common, civil and mixed legal systems gets less and less self evident. Second, the limitation of legal systems to three groups itself is problematic, as already discussed in a prior post. Such a reductionist approach ignores the great variability of legal systems within each of these three groups. It also completely leaves out indigenous and other non-Western systems.

Different Kinds of Mixed Legal Systems

So is there the category of mixed legal systems? Such a result seems questionable given the considerable variety among these blended legal systems. For example, Professor Örücü has distinguished between four different kinds of mixed legal systems:

(1) mixing bowl systems where distinct elements are integrated within similar legal institutions (e.g. Scotland);

(2) salad bowl systems where both legal elements and institutions are distinct (e.g. Algeria);

(3) salad plate systems where legal dualism or pluralism exists (e.g. Zimbabwe); and

(4) puree systems where legal traditions that form the basis for legal elements and institutions have become truly blended (e.g. Dutch law).

This fourth point, however, illustrates that the whole category of mixed legal systems rests on a slippery slope. When is a system considered a mixed legal system instead of a member of a legal family? Which and how many distinctive elements from different families must a legal system possess in order to be considered mixed? And, last but not least, which classification method is most suitable for taking into account the special quality of a legal system, if there is any?


  • Patrick Glenn, A Concept of Legal Tradition, 34 Queen’s L.J. 427, 431 (2008).
  • William Tetley, Mixed Jurisdictions: Common Law vs. Civil Law (Codified and Uncodified), 60 LOUISIANA L. REV. 618-738 (2000).
  • Esin Örücü, Mixed and Mixing Systems: A Conceptual Approach, in STUDIES IN LEGAL SYSTEMS: MIXED AND MIXING 335, 344-345 (Örücü, Attwool & Coyle, eds., 1996) .