Two Rival Theories of Mixed Legal Systems
Journal of Comparative Law, Vol. 3, 2008
Posted: 12 Oct 2007
There seems to be 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 issues at stake can be put into sharper focus. Unfortunately the classification schemes of mainstream comparative law afford almost no scope to the mixed systems and hardly venture into this subject. There are nevertheless two rival theories as to what these terms actually mean and how they should be applied. They give us different answers to the questions "What is a mixed jurisdiction and who is a mixed-jurisdiction jurist?
On the one hand, scholars influenced by legal pluralism often entertain a wide conception of a mixed system. The sole requirement is the presence or interaction of two or more kinds of laws or legal traditions within a system. According to this viewpoint any interaction of laws of a different type or source - indigenous with exogenous, religious with customary - is sufficient to constitute a mixed legal system. This view revolutionizes the legal map offered by mainstream comparative law and leads to important insights that apply to European systems as well, but it has not yet succeeded in putting the resulting proliferation of mixed legal systems into any useful order for the purposes of comparative law.
Other scholars on the other hand, particularly those inside classical mixed jurisdictions such as Scotland and Louisiana, have used a restricted and narrower notion of a mixed legal system. For the purposes of research or comparative law theory they have tended to limit this category to private-law systems based upon a core of common law and civil law elements, and other shared features stemming from this mixture. The paper traces the origins of this narrower approach and discusses the benefits of recent research comparing these kinds of jurisdictions.
An attempt is made to reconcile the rival theories and to indicate that the classical mixed jurisdictions are a genus of the mixed species, and that the raison d'être of complex plural systems around the world with various "personal laws" is not that different than the reasons which led to the founding of the classical mixed systems. It is argued that comparative law research in the classic mixed systems is therefore strengthened by plurality consciousness and non-western elements in their legal order should not be ignored, for example in countries such as South Africa and Sri Lanka.
Keywords: Mixed Jurisdictions, Civil Law, Jurisprudence, Comparative Law
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