Mixed legal systems... and the myth of pure laws

Louisiana Law Review

Volumn 67, Issue 4, 2007, Pages 1205-1218

  Palmer, Vernon Valentine ^a,b,c  

^a Department of Law ^*

^b Eason Weinmann Center of Comparative Law

^c TULANE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

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EID: 34547941591     PISSN: 00246859     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (58)

1. See Jacques du Plessis, Comparative Law and the Study of Mixed Legal Systems, in THE OXFORD HANDBOOK OF COMPARATIVE LAW 477, 480-86 (Mathias Reimann & Reinhard Zimmermann eds., 2006).
2. Jacques du Plessis has noted this breadth: "When legal pluralism is defined broadly as the 'situation in which two or more laws interact' it essentially absorbs the concept of the mixed system." Id. at 483 n.17 (citation omitted). One may go further: It absorbs nearly all the systems of the world.
3. An alternative approach might try to redraw the world map in terms of a list of "traditions" rather than "systems," but this approach may have little appeal as a classificatory tool. According to H. Patrick Glenn, the traditions are antithetical to exclusivist categorizations and do not provide a basis to classify legal systems. See H. Patrick Glenn, Comparative Legal Families and Comparative Legal Traditions, in THE OXFORD HANDBOOK OF COMPARATIVE LAW, supra note 1, at 425 [hereinafter Glenn, Families & Traditions];
4. see also H. Patrick Glenn, LEGAL TRADITIONS OF THE WORLD 33-34 (2d ed. 2004). Furthermore, since it is society's collective memory that is constitutive of a tradition's identity, then all traditions would seem to be pure from the internal point of view. Traditions may in fact contain mixtures, but this would not necessarily be acknowledged as a fact, nor would it deal easily with mixed systems that are astride two or more traditions.
5. M.B. Hooker, LEGAL PLURALISM - AN INTRODUCTION TO COLONIAL AND NEO-COLONIAL LAWS 6 (1975).
6. Nicola Mariani & Graciela Fuentes, LES SYSTÈ MES JURIDIQUES DANS LE MONDE (2000). As will be seen, I have reservations about the methods used in this study.
7. The criteria for this category were explained as follows: The term "mixed," which we have arbitrarily chosen over other terms such as "hybrid" or "composite," should not be construed restrictively, as certain authors have done. Thus this category includes political entities where two or more systems apply cumulatively or interactively, but also entities where there is a juxtaposition of systems as a result of more or less clearly defined fields of application. Id. at 17 (Benjamin W. Janke trans., 2007).
8. See id. for the criteria. For example, the list of "mixed systems" omits Benin and Central African Republic. They are listed among "civil law" countries, in disregard of the fact that there are African customary law systems operating in these countries alongside of civil law.
9. Reinhard Zimmermann, ROMAN LAW, CONTEMPORARY LAW, EUROPEAN LAW 159 (2001).
10. H. Patrick Glenn argues for example that the very notion of "legal families" and "legal systems" is Eurocentric in character. In his words, "Western legal traditions are the only ones of the world which have developed the concept of a legal system, and the only ones of the world which purport to describe law, notably in terms of legal families, as opposed to simply living according to it." Glenn, Families & Traditions, supra note 3, at 435. Yet research would establish that the notion of a "legal system" is one of the West's great exports and has been received almost everywhere in the world. Since nonWestern countries make use of it, has it not shed its Eurocentric cast?
11. I have argued elsewhere that a wider public law focus is essential to an understanding of the mixed jurisdictions: "The common-law and civil-law families are really 'private-law' families carved from private-law comparisons. Normally this private-law focus is thrown into disarray when the public law is included and compared." Vernon Valentine Palmer, Introduction to the Mixed Jurisdictions, in MIXED JURISDICTIONS WORLDWIDE: THE THIRD LEGAL FAMILY 6 n.8 (Vernon Valentine Palmer ed., 2001).
12. Glenn, Families & Traditions, supra note 3, at 438.
13. See, e.g., T.H. Bingham, "There is a World Elsewhere:" The Changing Perspectives of English Law, 41 INT'L & COMP. L.Q. 513 (1992).
14. Hector MacQueen, Looking Forward to a Mixed Future: A Response to Professor Yiannopoulos, 78 TUL. L. REV. 411, 412 (2003).
15. D.J. Ibbetson, A HISTORICAL INTRODUCTION TO THE LAW OF OBLIGATIONS 1 (1999).
16. In Lord Dennings's famous allusion, "[T]he Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back." H.P. Bulmer, Ltd. v. J. Bollinger S.A., [1974] Ch. 401, 418 (U.K.). For an appraisal of the effects as of the 1990s, see B.S. Markesinis, THE GRADUAL CONVERGENCE 30-32 (1994).
17. See Mark Attew, Teleological Interpretation and Land Law, 58 MOD. L. REV. 696 (1995);
18. Bingham, supra note 12, at 522-24;
19. Jonathan E. Levitsky, The Europeanization of the British Legal Style, 42 AM. J. COMP. L. 347 (1994);
20. Diana Nestorovska, Influences of Roman Law and Civil Law on the Common Law, 1 HANSE L. REV. 79 (2005).
21. See Hein Kötz, The Value of Mixed Jurisdictions, 78 TUL. L. REV. 435, 439 (2003) ("It may sound a bit premature and starry-eyed, but I will say it nonetheless: let us hope that the gradual establishment of a European law as a mixed jurisdiction will allow us to combine the best of both worlds.").
22. For example, a comprehensive concept of breach of contract has now been achieved across Europe, though this required a break with a long tradition to the contrary in certain civil law countries. See Jürgen Basedow, Towards a Universal Doctrine of Breach of Contract: The Impact of the CISG, 25 INT'L REV. L. & ECON. 487 (2005).
23. See MacQueen, supra note 13, at 417.
24. Glenn compares them to anomalies in the world of science where complex structures may represent "frozen accidents." H. Patrick Glenn, Quebec: Mixité and Monism, in STUDIES IN LEGAL SYSTEMS: MIXED AND MIXING 1, 14 (Esin Örücü et al. eds., 1996).
25. Esin Örücü shares this view that all legal systems are overlaps and mixes to varying degrees and thus their mixed nature should be the starting point of comparative classification. See Esin Örücü, Family Trees for Legal Systems: Towards a Contemporary Approach, in EPISTEMOLOGY AND METHODOLOGY OF COMPARATIVE LAW 359, 363 (Mark Van Hoecke ed., 2004).
26. For example, it has been asserted that Israeli drafting successes may reassure England of the feasibility of changing its drafting style; that Scots law or the McGregor code may serve as a template for the single European code; and that Louisiana law may show how common law/civil law ideas can be conciliated in a civil code. See Giuseppe Gandolfi, CONTRACT CODE DRAWN UP ON BEHALF OF THE ENGLISH LAW COMMISSION v-xi (1993);
27. Kötz, supra note 17, at 438-39.
28. MacQueen, supra note 13, at 412.
29. On the large number of foreigners flowing in and out of Rome, their tribal networks and the cosmopolitan nature of its population, see Callie Williamson, THE LAWS OF THE ROMAN PEOPLE: PUBLIC LAW IN THE EXPANSION AND DECLINE OF THE ROMAN REPUBLIC 240-43, 262-67, 270-71 (2005).
30. See Michael Lambris, THE HISTORICAL CONTEXT OF ROMAN LAW 48 (1997);
31. George Mousourakis, THE HISTORICAL AND INSTITUTIONAL CONTEXT OF ROMAN LAW 418 (2003);
32. Barry Nicholas, AN INTRODUCTION TO ROMAN LAW 57 (1969) ("Ancient law was in principle 'personal' . . . Roman law applied to Roman citizens, Athenian law to Athenian citizens."). There may have been instances in which a people were admitted to the Empire but did not retain their tribal custom, perhaps because they had already been sufficiently Romanized by living in close contact with the Roman society for several generations.
33. See P.S. Barnwell, Emperors, Jurists and Kings: Law and Custom in the Late Roman and Early Medieval West, 168 PAST & PRESENT 6, 9-10 (2000).
34. See Simeon L. Guterman, THE PRINCIPLE OF THE PERSONALITY OF LAW IN THE GERMANIC KINGDOMS OF WESTERN EUROPE FROM THE FIFTH TO THE ELEVENTH CENTURY 39 (1990).
35. See Nicholas, supra note 25, at 58. One example cited by Nicholas was that an old institution of the ius civile, the contract of stipulation, was made applicable to peregrines. Id.
36. The Frankish capitulary of 768, for instance, stated: "All shall follow their own law, both Romans and Salians; and those who come from other regions shall live according to the law of their own country." Maurizio Lupoi, THE ORIGINS OF THE EUROPEAN LEGAL ORDER 394-95 (Adrian Belton trans., 2000) (1994).
37. Mousourakis, supra note 25, at 419.
38. See id. at 418.
39. See Lupoi, supra note 28, at 77-78.
40. See id. at 82.
41. See Mousourakis, supra note 25, at 419.
42. Id. at 420. Lupoi says this alleged "principle" was not spelled out in any source and did not exist as a principle.
43. See Lupoi, supra note 28, at 388, 393.
44. According to Lupoi, "Visigothic legislation was invariably modeled on Roman legal sources and the various sources of vulgar Roman law, which were influenced by it in their turn." Lupoi, supra note 28, at 75.
45. He notes, for example, that King Euric was assisted in compiling his code by the Roman jurist, Leon of Narbonne. See id. at 75 n.209.
46. Mousourakis, supra note 25, at 421.
47. See Esin Örücü, Turkey: Change Under Pressure, in STUDIES IN LEGAL SYSTEMS: MIXED AND MIXING 89, supra note 20, at 89, 90-92.
48. Chibli Mallat sees a "powerful contrast" between "the overarching system of Islamic law as a 'personal model' versus the dominant system of Western law described as a 'territorial model.'" Chibli Mallat, Comparative Law and the Islamic Legal Culture, in THE OXFORD HANDBOOK OF COMPARATIVE LAW, supra note 1, at 624.
49. Örücü, supra note 37, at 90. Thus Jews, Armenians, and Greeks living in and near Istanbul followed their own laws and had separate courts. NonMoslems living on European lands also had their own courts and their own laws. French residents, under the "Capitulations," had special status, extensive privileges, their own Consular Courts, and their own laws.
50. Id. at 92.
51. Id.
52. See Werner Menski, COMPARATIVE LAW IN A GLOBAL CONTEXT 116 (2d ed. 2006).
53. See Hooker, supra note 4, at 58-62.
54. See id. at 86-101.
55. Id. at 220.
56. Common-law/civil-law hybrids from the colonial period would include Quebec, South Africa, Louisiana, Sri Lanka, Puerto Rico, The Philippines, Mauritius, Seychelles, Namibia, Lesotho, Zimbabwe, Swaziland, Botswana, and Cameroon. Exceptions arising for reasons unrelated to colonialism would include Scotland, Israel, and possibly Cyprus.
57. By this is meant that within a country's boundaries, there is one legal system that is by definition exclusive.
58. See Palmer, supra note 10, at 21-22.