Mixed Legal Systems . . . and the Myth of Pure Laws

• Author: Vernon Valentine Palmer
• Position: Thomas Pickles Professor of Law
• Pages: 1205-1218

Thomas Pickles Professor of Law, Co-Director of the Eason-Weinmann Center of Comparative Law, and Director of European Legal Studies, Tulane University.

I Introduction

Perhaps there is no consensus among comparatists as to the meaning we should give to the expressions "mixed legal system" or "mixed jurisdictions" (they are frequently used interchangeably), but the issue is gaining sharper focus as a result of contemporary debate and developments. This article is not an attempt to offer a new or better classification scheme nor to offer a new set of labels. Rather I only intend to discuss some of the problems involved in the use of the terms we have been using. The subject of classification remains significant if we are to understand whether bijural systems like Louisiana, Scotland, Quebec, and South Africa have common characteristics and can be studied comparatively with profit or what can be gleaned from their "mixed jurisdiction" experience. The way we classify systems affects attitudes, perceptions, and sometimes reveals prejudice about those systems. It may even affect the "value" that is placed upon their experience. This article is a series of remarks and reflections on the labels and the values we attach to the mixed systems.

One problem with adopting a current conception of a "mixed system" (wherein the sole requirement is only the presence or interaction of two or more kinds of laws or legal traditions within each system)¹ is that most of Africa, Asia, India, and the "classical" mixed jurisdictions as well will answer to this description. The category is extremely broad since it is as extensive as the notion of legal pluralism. It of course lumps together systems with very little in common, such as Louisiana and Algeria, or Quebec and China.² Indeed, rigorous use of this conception, which is factual in its approach, would mean that the Page 1206 quasi-totality of the legal systems of the world might be regarded as "mixed legal systems." It would imply that countries such as England, Australia, Canada, France, Germany, and Switzerland, which are generally thought of as though they were either pure common law or civil law systems, would need to be reclassified, for they are certainly mixed systems in a factual sense. Of course no one expects that revolution to happen. Indeed if the choice is between the indiscriminately lumped and the artificially pure, we will probably continue with the artificially pure. But at that point the practical, scientific, and didactic reasons for classifying systems in the first place are significantly reduced.³

II Analysis

Having posed the problems in these terms, let me now make a number of remarks and observations.

A A Factual Approach to Mixed Systems

I seriously doubt that there should be much debate on the question, "What constitutes a mixed legal system?" We may not know the causes of legal mixtures, but we at least know what a legal mixture is. We can verify its existence factually. If we apply Hooker's definition that "legal pluralism refers to the situation in which two or more laws interact,"⁴ then it follows that the presence within a single legal system of laws, methods, techniques, or legal institutions drawn from another tradition or foreign system is sufficient to constitute a mixed legal system. On the other hand, the absence of any laws, methods, or institutions drawn from a different legal tradition would suggest that the system is "pure" rather than mixed. A mixed system, then, would be one in which Page 1207 two or more legal traditions, or parts thereof, are operating simultaneously within a single system. This factual test, as I have already indicated, is clearly not orthodox among comparative scholars who seem to employ normative and prescriptive criteria, but for purposes of discussion I will adopt the factual test in order to make a number of points clear.

B Pervasiveness of Mixed Systems

The first implication stemming from the factual approach is that we live in a predominantly mixed and plural world. Mixtures are pervasive and they are center stage. There is no reason to regard them as strange and anomalous. It should be acknowledged that mixed systems outnumber "pure" systems of law. They include some of the most populous areas on the globe, such as China, India, and many countries in Africa. In a study by the University of Ottawa, which classified legal systems using six categories (civil law, common law, Muslim law, Talmudic law, customary law, and mixed systems),⁵ it was found that ninety-two legal systems are mixed,⁶ ninety-six are "civil law," and forty-two are "common law." From a factual point of view, however, the number of mixed systems is necessarily far greater than the study suggested. A number of mixed systems were listed as "civil law," while a number of "civil law" systems could have been listed as mixed if the criteria for the latter had been applied consistently.7 Moreover, the list of civil law countries covers most of Europe, but according to many observers the European Union itself is becoming a mixed legal system and the Member States, including the United Kingdom, are experiencing not merely the pangs of convergence but are receiving direct doses of non-national law. Upon reflection, all of the so-called civilian legal systems within Page 1208 the European Union could easily be regarded as mixed legal systems. These systems have been for many centuries an amalgam of indigenous and exogenous sources. Thus Reinhard Zimmermann has commented:

All our national private laws in Europe today can be described as mixed legal systems. None of them has remained "pure" in its development since the Middle Ages. They all constitute a mixture of many different elements: Roman Law, indigenous customary law, canon law, mercantile custom, and Natural Law theory, to name the most important ones in the history of the law of obligations.8

Professor Zimmermann's point, however, cannot be confined to Europe. The world's legal systems may all be described as diversified blends of various ingredients: they may include chthonic laws, indigenous customs, exogenous customs, religious laws (Jewish, Hindu, Islamic, or Canon), law merchant, natural law, Roman civil law, common law, and various statutes and codes. I believe it is not at all unusual or surprising to discover five or six layers of exogenous elements in any single private law system one cares to examine.

Thus the factual approach to classification is useful as a contrast to the normative and prescriptive assumptions that underlie our traditional way of classifying systems.

C The Myth of Pure Laws

If these generalizations are accepted, then it may be asked why comparatists constantly make it sound like there are such things as "pure" systems of common law, civil law, or whatever kind. The reason is not entirely clear. Eurocentrism may play a part, and ingrained outlooks are difficult to change.⁹ Whatever the reason, however, we are certainly engaging in oversimplifications that Page 1209 conceal reality. First, without openly saying so, we are using private law as the proxy for judging entire legal systems. Obviously when we use signifiers like "common law" or "civil law" or "Muslim law," these say little or nothing about the constitutional, administrative, or criminal laws in such systems.10 It would be more accurate to call this a classification of private law systems. Second, these private law signifiers do not even refer to the whole of the private law system. Instead they simply make resort to the oldest taproot of the system as the identifying feature. The other roots are ignored. It is a technique of "limited feature classification,"¹¹ which conveniently leaves out the non-indigenous areas of private law (such as the law merchant, the canon law, and so forth) that have created a legal alloy. Only by dint of this reductionism can anyone claim that these systems are pure and not mixed.

D A Glance at England and the European Union

Digressing for a moment, it is increasingly argued that the English common law is already a mixed system, and nowadays English lawyers seem more inclined to acknowledge the intermixture than in the past.¹² Hector MacQueen argues that English law has been transformed in the past two centuries. He cites the decline of the doctrine of consideration in contract, the Continental origins of Hadley v. Baxendale, and recent legislation that abolished the privity principle in order to bring English law into line with other jurisdictions of the European Union. The field of obligations, he continues, has been restructured as a system once based upon the forms of action into one "founded on the division of contract, tort, and unjust enrichment."¹³ David Ibbetson similarly notes that "The Common law of obligations grew out of the intermingling of native ideas and sophisticated Roman Page 1210 learning."¹⁴ Entry into the European Union has of course hastened a rapprochement with the Continent.¹⁵ English law has absorbed close to twenty European Community ("EC") Directives affecting the area of traditional private law and has been receiving a variety of Continental ideas, including the principles of proportionality and legitimate expectation, the distinction between private law and public law, teleological and purposive reasoning, and Continental drafting style.¹⁶

The European Union may soon be recognized as a supranational mixed system. That seems to be an outcome that some Europeanists desire,¹⁷ and there are various signs that this is happening...