Book Review-Mixed Jurisdictions Worldwide: The Third Legal Family

• Author: Alain Levasseur; Jackie M. McCreary
• Position: Hermann Moyse, Sr. Professor of Law, Paul M. Hebert Law Center
• Pages: 69-73

Page 69

Hermann Moyse, Sr. Professor of Law, Paul M. Hebert Law Center, Louisiana State University; Jean Monnet Chair of European Community Law.

Articles Editor, Louisiana Law Review, Volume 63 and Juris Doctorate Candidate, May 2003.

The very notion of mixed jurisdiction and its agreed upon confinement or restriction to a greater or lesser mingling of two of the most widely spread legal traditions, the civil and the common law, have for the most part garnered the approval of comparatists. F. P. Walton referred to mixed jurisdictions as "legal systems in which the Romano-Germanic tradition has become suffused."¹ Suffusion is the concept often used to describe mixed jurisdictions in that a mixed jurisdiction is an overspreading of two legal systems into a culmination of one. Walton's view contrasts with that of Palmer who writes that "Israel and Scotland are the only states of this kind [mixed] which one might say freely chose to become hybrid and did so as independent countries. The others acted under compulsion."²Palmer also writes that

[a]n under-emphasized but vital fact is the difference between British- and American-influenced mixed jurisdictions. Although both influences are common law, . . . [c]ivil law in South Africa, Quebec, and Israel has cohabited exclusively with the English common law, . . . [o]n the other hand, civil law in Louisiana, Puerto Rico and the Philippines has lived in turbulent monogamy with American³ law.⁴

R. Evans-Jones wrote that a mixed legal system is "a legal system which, to an extensive degree, exhibits characteristics of both the civilian and the English common law traditions."⁵

If, in these definitions, the accent is on the identification of a mixed jurisdiction as living under a legal system mixing the civil law and the common law, it should be acknowledged that other types of "mixits" or mixtures or minglings of legal systems can exist. There Page 70 is, indeed, no reason why a country would not qualify as a "mixed jurisdiction" if its legal system were a mixture of written law and customary law, or religious law and secular law. As long as a national or state legal system is a vivid example of a mixture of legal systems or traditions, whatever their nature and whatever the degree of inter-penetration, absorption, cohabitation or suffusion of these legal systems, that mixed legal system is in use in a mixed jurisdiction.⁶ Yet, the expression "mixed jurisdiction" has become identified⁷ with the legal system in force in a country (South Africa), a state (Louisiana) or a province (Quebec) where the civil law and the common law traditions have mixed and still mix to a greater or lesser extent. That identification has been usurped by the civil law and the common law pushing and shoving aside other mixed legal traditions in the making of a new legal family-their offspring-which Professor Palmer has named "The Third Legal Family."⁸

Talking about offspring, only a child of this family could write so eloquently, so vividly, and so emotionally about the "Third Family." Raised and educated in the state of Louisiana and, for the last thirty years, a pillar of the Tulane Comparative Law Faculty, Professor V.V. Palmer is one of only a handful of legal scholars who could paint before our eyes such a lucid, methodical, insightful, and heart- felt presentation of the nature and features of a "mixed jurisdiction" as he describes it. His feel for the subject matter, his mastership of comparative law, his breadth of knowledge and experience of a wide variety of existing legal orders, and his humanist perspective on law entitle him to take the leadership, and the well deserved credit, in making the assertion that a new legal family has emerged and that this "Third Legal Family" of Mixed Jurisdictions has now reached maturity with its own personal identity. The whole purpose of the book⁹ is to prove, through common experience, that there exists a commonality of features-three all together-making some jurisdictions the component members of this new legal family and Page 71 that the methodology used to penetrate the originality of this new family is that of "a horizontal 'cross-comparative' focus."

The core of the book, Part II: The Comparative Evidence, is built on seven reports written in response to a questionnaire drafted by Vernon Palmer.¹⁰ The questionnaire reflects the pre-selection of subjective assumptions, which Palmer does not hide,¹¹ meant to demonstrate that...