Mixed Legal Systems, East and West

Vernon Valentine Palmer, Mohamed Y. Mattar

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781472431066
• eBook ISBN: 9781317095378
• Topic: Law
• Subtopic: Comparative Law
• Index: Law

Advancing legal scholarship in the area of mixed legal systems, as well as comparative law more generally, this book expands the comparative study of the world's legal families to those of jurisdictions containing not only mixtures of common and civil law, but also to those mixing Islamic and/or traditional legal systems with those derived from common and/or civil law traditions. With contributions from leading experts in their fields, the book takes us far beyond the usual focus of comparative law with analysis of a broad range of countries, including relatively neglected and under-researched areas. The discussion is situated within the broader context of the ongoing development and evolution of mixed legal systems against the continuing tides of globalization on the one hand, and on the other hand the emergence of Islamic governments in some parts of the Middle East, the calls for a legal status for Islamic law in some European countries, and the increasing focus on traditional and customary norms of governance in post-colonial contexts. This book will be an invaluable source for students and researchers working in the areas of comparative law, legal pluralism, the evolution of mixed legal systems, and the impact of colonialism on contemporary legal systems. It will also be an important resource for policy-makers and analysts.

Part I
The Contemporary Nature of Mixed Legal Systems

Chapter 1
“As Slippery as an Eel”? Comparative Law and Polyjural Systems

Biagio Andò

This chapter’s focus is on polyjural systems—that is, systems that are built on several different legal traditions whose contribution to the recipient legal system is individually discernible—and on the gauntlets such systems throw down to those comparative law scholars who try to understand how they work in practice.¹

In this chapter, I will use some general concepts that recur in comparative analysis of legal systems (such as the concept of legal tradition or legal culture). Because of their wide use and consequent high degree of vagueness, I will explain briefly, for the ease of the reader, the way in which the key concepts will be used throughout this chapter.²

The expression legal system will be used when the aim is to emphasize the importance of formal written provisions. Legal tradition,³ which will be discussed in more detail later in the chapter, highlights conceptual units that are wider or narrower than national legal systems. Legal culture⁴ refers to the style of thought and the patterns of reasoning within and about the law pursued by jurists of the recipient system⁵ and thus affecting the reconstruction of the set of meanings of written rules (Cotterell 2006).

This topic not only implies a profound awareness of some comparative law key concepts, but also deals with some complex issues relevant at the level of comparative law methodology. The links between these latter and the field of inquiry are two-way: on the one hand, a grasp of the general issues, such as admissibility of legal transplants and patterns of development of European private law, is necessary to deal with this theme; on the other hand, the specific topic discussed in these pages provides a deeper comprehension of those general issues.

As to the first aspect, the theme of polyjural systems may give an insight into the patterns through which legal transplants may occur.⁶ Polyjurality is the effect of the interaction or mutual influence of autochthonous law and foreign law in a sociolegal context that is other than the one the foreign law comes from. It is a consequence of a massive reception of foreign law occurring in two alternative ways: either through spontaneous reception or through imposition by a colonial power.

Spontaneous reception is the by-product of several factors, such as the role that is played by the autochthonous legal culture during the reception of these materials and which lies behind that change.⁷ Studying how this reception occurred may help us understand whether the reception of legal materials may be deemed a response to societal needs, so that a symmetrical relationship between law and society may be depicted (as so-called mirror theories suggest),⁸ or whether law evolves in a rather independent and dysfunctional way,⁹ as the result of the initiative of minorities or elites.¹⁰

Arguably the mind-set of jurists has a primary role in polyjural systems, greatly affecting the ways in which rules coming from different traditions were combined and accommodated within the same system.¹¹ Therefore, to seize the ways in which the legal culture produced the set of meanings necessary to assimilate the legal foreign materials and to enable them to be enforced,¹² one must pay attention to the sociolegal context in which rules are bound to work.¹³

From a more specifically European viewpoint, the study of polyjural systems may be assessed—and some years ago a scholar attempted to make such an assessment (Smits 2001; 2002; see also Kötz 2003)—as a useful paradigm to understand how the development of a common European private law may occur despite the clear and huge differences existing among national legal systems.

In the following pages, I will not attempt to propose either a new approach or new definitions. My aim is more modest. I will try to frame the topic, moving from the methods and definitions suggested by some scholars whose approach to the subject seems to me particularly significant. I will try to highlight their conceptual and theoretical apparatus (and also their practical goals). The definition of mixed systems or mixed jurisdictions is widely used by those involved in the study of these complex entities.¹⁴ I will attempt to clarify this term for those making recourse to it.

Two Significant Attempts to Explain the Phenomenon of Polyjural Systems: The Approaches of Palmer and Örücü

Terms currently used in comparative law scholarship (such as mixed jurisdictions) are the by-product of theorizing efforts; they are not part of the language of a given lawmaker. There is no uniform approach to mixed jurisdictions, nor is there a common methodology to identify the main characteristics of such jurisdictions. I will therefore deal with two specific approaches, those by Palmer and Örücü, and I will do so in two stages. First, I will sketch a neutral (insofar as it is possible) description of the two approaches, and then I will attempt a critical appraisal.

Regarding the first point, some implicit premises are common to both Palmer and Örücü:

1. Both authors believe that mixed systems cannot be considered as exceptions or anomalies today. They are no longer considered isolated entities.¹⁵

2. Both authors feel the need for a classificatory grid, and thus they restrain the scope of their survey (even if they do so in different ways).

3. Both approaches agree that, to avoid a superficial comprehension of those jurisdictions, a survey cannot be bound to the analysis of legal rules. Law has to be put in context. Both Örücü and Palmer (though in different ways) call for the need to go beyond formal law.

However, there are also some important differences in their approaches:

• The object of their analysis is different. Whereas in Palmer’s work the key concept is jurisdiction, in Örücü’s work it is “system” (a notion that is used in some examples with a meaning different from that of state legal order).

• Palmer’s approach is much more specific than Örücü’s. It focuses on those entities dominated by polyjurality, especially jurisdictions that rest on civil and common law foundations.

To better explain the differences between these two approaches, I will consider them in turn.

The Cultural Roots and the Corollaries of Palmer’s Approach

Palmer’s approach is at the same time traditional and new.¹⁶ It is traditional because Palmer’s reasoning is grounded on the concept of legal families,¹⁷ a deeply rooted idea in comparative legal systemology.¹⁸ However, here the concept of legal family is used to group legal systems that are dissimilar from those usually considered in that they show peculiar traits and do not exhibit the unity and coherence of “pure” jurisdictions that form traditional legal families.

Legal systems were usually conceived as coherent orders with distinct, clear-cut constitutive elements.¹⁹ Systems showing features that made them hybrid²⁰ were not considered influential experiences, because they did not disclose common patterns or resemblances among themselves.²¹ This anomaly condemned them to what has been aptly defined by Du Plessis (2006: 480) as a “classificatory limbo.”

Today the position assessing polyjural systems as entities in isolation has to be considered a relic of the past.²² Scholars living in these jurisdictions have recently started an enhanced dialogue to encourage mutual intelligibility between their systems. These systems are now considered to be a relevant ground for a comparative law survey. A change in perspective has occurred.

This change was fostered by the pioneering inquiries of Walton (1899), Lee (1915), and Amos (1937). These studies shed light on systems that could not be classified under either the civil law or the common law label because their ingredients did not fit well into either. Walton (1899) remarked that some systems—such as Quebec, Louisiana, and Scotland—were a kind of hybrid occupying a position midway between common law and civil law, because they had features that were amenable to both.

Lee’s (1915) contribution was twofold. On the one hand, on the ground of terminology, he coined the word mixed to define those systems whose peculiar features made them not suitable to fit into the traditional categories in which the world’s legal systems were mapped. On the other hand, he widened the scope of the survey in comparison with that made by Walton and extended it to more systems. Lee attempted to show how civil tradition managed to resist the ever-increasing invasion of common law into areas that were traditionally civil realms. Later, an important figure in this field of study was Smith (1965: 4), who often used the expression mixed jurisdictions for those entities, “basically … civilian,” “that had been under pressure from the Anglo-American common law and … in part … overlaid by that rival system of jurisprudence.”

Smith’s most significant contribution to the growth and development of this area of studies was the idea that identifying the specific relationship between the common law and the civil law constituents was essential to define the identity of those systems. He noted that the identity of each of those legal systems was not unique. Conversely, Smith (1965) observed that these experiences were worthy of study, because they could be useful for their “neighbours in law” (that is, for the other mixed jurisdictions). Mixed jurisdictions came out of isolation and became a useful ground of comparison by studying those legal issues that they held in common (Smith 1965).²³ Smith’s interest—far from being merely scientific—was rather practical. Because Smith was strongly oriented toward the civil law tradition, his survey was aimed at understanding if in those systems the civil law tradition could resist attacks by common law.

Palmer’s position did not, therefore, blossom like a flower in a desert. He walked on the path paved by the aforementioned scholars and refined their theories on mixed jurisdictions. In Palmer’s (2012b: 373) view, the taxonomy mixed jurisdictions encompasses those systems that, despite “the indisputable diversity of peoples, cultures, languages, climates, religions, economies, and indigenous laws existing among them,” share some characteristics, which this chapter will discuss further.

The first feature Palmer singles out is the specificity of the mixture, because those systems have their roots in civil law and in common law. These two traditions affect distinct areas of the legal system, playing the role of building blocks: the civil law tradition molds the field of private law, whereas the common law tradition shapes the fields of procedural, constitutional, and commercial law.²⁴ Second, Palmer notes that this coexistence of different roots is accepted and considered obvious by those who live and work within those legal systems.²⁵

The third important characteristic is that of “mentality,” a factor that encompasses the ways in which scholars who are insiders in mixed systems conceive of law. Palmer singles out three kinds of scholars at work in mixed jurisdictions: the purists, who have been educated according to civil legal culture and resist the interferences of common law;²⁶ the pragmatists, who are open to contamination by civil and common law; and the pollutionists, who are in favor of Anglo-American law because they believe in its superiority.

A Different Perspective on Mixed Systems: Örücü’s Approach

Örücü’s approach has a wider scope than Palmer’s. Palmer’s approach aims at putting together specific systems sharing some features, and therefore Palmer’s focus is on the criteria ascertaining what a mixed system is. Nonetheless, Örücü’s effort seems aimed at formulating a theory able to explain the phenomenon of mixes that results from the interaction of laws of a different type or source. Therefore, Örücü’s focus is on how a system may be mixed.

The differences between Palmer’s and Örücü’s approaches concern the taxonomies used to describe their object of analysis: Palmer’s focus is on mixed jurisdictions, whereas Örücü (1996) refers to mixed legal systems. Palmer looks at a set of institutions, principles, and rules enacted in a given territory, whereas Örücü’s analysis goes beyond the scale of state. Her approach looks at all kind of mixes at the state, intrastate, and supranational levels. Although Palmer’s approach is grounded on exclusion (as the entities examined are restricted to a specific group sharing some basic features), the keyword that best summarizes Örücü’s approach is the opposite of exclusion—expansion (Örücü 2008).

What is disclosed by Palmer would be but one specific kind of mixing (resulting from the encounter of civil and common law traditions, defined by Örücü as simple), whereas other elements could affect the blend of mixed systems, such as the chthonic, religious, and customary ones interacting with one of the two main legal traditions and thus giving rise to other kinds of mixes. This approach is not restricted to Europe or to the Western world; it applies also to other contemporary mixed systems and to systems in transition. The resulting mix would depend on the degree of closeness or similarity among the factors forming the blend, according to the greater or lesser points of contact among the legal and social cultures of the blended traditions. The mixes could be accommodated on a spectrum (Örücü 2008: 12). At one end are those mixes that form a compound of elements from different legal traditions that lost their identity in the mixed system and, because of their strong affinity on sociocultural and legal-cultural grounds, are indistinguishable within the new entity. At the other end are the dysfunctional mixes—those that are not able to work correctly because of the huge differences in their traditions. In the middle, the systems in which the different elements coming from the diverse traditions are recognizable, because the degree of similarity of the systems giving rise to the mixed one is less evident.²⁷

Örücü’s approach is developed through the intermingling of two theories borrowed from linguistics: the family trees approach²⁸ an...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of Figures
• Notes on Contributors
• Preface
• List of Abbreviations
• Part I The Contemporary Nature of Mixed Legal Systems
• Part II Patterns of Common and Civil Law Hybridities
• Part III Mixed Legal Systems with Indigenous, Customary, and Religious Law
• Part IV The Islamic Legal System and Western Legal Traditions
• Part V Patterns of Mixing in Specialized Areas of the Law
• Index