Mixed Jurisdictions

Mixed jurisdictions and mixed legal systems, their characteristics and definition, have become a subject of very considerable interest and debate in Europe, no doubt because of the European Union, which has brought together many legal systems under a single legislature, which in turn has adopted laws and directives taking precedence over national laws. In effect, the European Union is a mixed jurisdiction or is becoming a mixed jurisdiction, there being a growing convergence within the Union between Europe’s two major legal traditions, the civil law of the continental countries and the common law of England, Wales and Ireland. [1]

The classic definition of a mixed jurisdiction of nearly one hundred years ago was that of F.P. Walton: “Mixed jurisdictions are legal systems in which the Romano-Germanic tradition has become suffused to some degree by Anglo-American law.” [2]

This is not too different from the modern definition of a mixed legal system given by Robin EVANS-JONES: “What I describe by the use of this term in relation to modern Scotland is a legal system which, to an extensive degree, exhibits characteristics of both the civilian and the English common law traditions.” [3]

Both Walton and Evans-Jones are referring to common law / civil law mixed legal systems which stem from two or more legal traditions. Mixed jurisdictions are really political units (countries or their political subdivisions) which have mixed legal systems. Common law / civil law mixed jurisdictions include[4] Louisiana, Québec, St. Lucia, Puerto Rico, South Africa, Zimbabwe (formerly Southern Rhodesia),[5] Botswana, Lesotho, Swaziland,[6] Namibia,[7] the Philippines, Sri Lanka (formerly Ceylon),[8] and Scotland.[9] It goes without saying that some mixed jurisdictions are also derived partly from non-occidental legal traditions: the North African countries, Iran, Egypt, Syria, Iraq and Indonesia, for instance.[10]

It is interesting that Walton and Evans-Jones are referring to two different forms of civil law traditions. Walton is concerned with codified systems, such as Québec and Louisiana, while Evans-Jones is dealing with jurisdictions such as Scotland and South Africa, which received Roman law over a considerable period of time without ever adopting a code. This distinction is important when one analyses such new branches of the common law as “restitution”, which in the United Kingdom is usually compared to Scottish uncodified civil law. When restitution is compared in North America to either the Québec or Louisiana codified civil law of quasi-contract, the effect, if not the result, is different.[11]

It is interesting as well that outside of Europe and such places as Québec, Louisiana and South Africa, there is little discussion of mixed jurisdictions; in fact the subject is usually met with indifference. Facetiously, one might therefore define a mixed jurisdiction as a place where debate over the subject takes place.

It is also useful to remember that different mixtures of legal systems and institutions exist in the world today. Örücü, for example, distinguishes:

• “mixed jurisdictions” such as Scotland, where the legal system consists of historically distinct elements but the same legal institutions (a kind of “mixing bowl”);
• jurisdictions such as Algeria, in which both the elements of the legal system and the legal institutions are distinct, reflecting both socio-cultural and legal-cultural differences (assimilated to a “salad bowl”);
• jurisdictions such as Zimbabwe where legal dualism or pluralism exists, requiring internal conflict rules (akin to a “salad plate”); and
• jurisdictions where the constituent legal traditions have become blended (like a “purée”), either because of legal-cultural affinity (e.g. Dutch law, blending elements of French, German, Dutch and Roman law) or because of a dominant colonial power or national élite which eliminates local custom and replaces it with a compound legal system drawn from another tradition (e.g. Turkey, blending elements of Swiss, French, German and Italian law).[12] She also notes the existence today of “systems in transition”, such as Slovenia, in which only time will determine the character of the composite system now being developed.

By William Tetley

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See Also

1. See B. Markesinis (ed.), The Gradual Convergence: Foreign Ideas, Foreign Influences and English Law on the Eve of the 21st Century, Clarendon Press, Oxford (1993).

2. F.P. WALTON, The Scope and Interpretation of the Civil Code, Wilson & Lafleur Ltée, Montreal (1907), reprinted by Butterworths, Toronto (1980), with an introduction by M. TANCELIN, 1.

3. R. EVANS-JONES, “Receptions of Law, Mixed Legal Systems and the Myth of the Genius of Scots Private Law” (1998), 114 L.Q.R. 228, 228.

4. See R. DAVID / J.E.C. BRIERLEY, Major Legal Systems in the World Today, 3 Ed., Stevens & Sons, London, 1985, paras. 56-58 at 75-79.

5. See R. ZIMMERMANN, “Das römisches-holländisches Recht in Zimbabwe” (1991), 55 RabelsZ 505.

6. See J.H. PAIN, “The Reception of English and Roman-Dutch Law in Africa with Reference to Botswana, Lesotho and Swaziland” (1978), 11 Comp. and Int’l. L. J. of Southern Africa 137.

7. Roman-Dutch law, as applied in the province of Cape of Good Hope on 1 January 1920, was made applicable in what is now the Republic of Namibia when that territory was taken over by South Africa after World War I. Since attaining independence on 20 March 1990, Roman-Dutch law continues to apply there by virtue of Art. 140 I of the Constitution of the Republic of Namibia. See R. ZIMMERMANN / D. VISSER, “South African Law as a Mixed Legal System”, being the Introduction to R. Zimmermann / D. Visser (eds.), Southern Cross. Civil Law and Common Law in South Africa, Clarendon Press, Oxford (1996), 3, n. 16. See also D. CAREY MILLER, “South Africa: A Mixed System Subject to Transcending Forces”, in E. ÖRÜCÜ, E. Attwooll & S. Coyle (eds.), Studies in Legal Systems: Mixed and Mixing, Kluwer Law International, The Hague, London, Boston (1996), 165-191.

8. See M.H.J. VAN DEN HORST, The Roman-Dutch Law in Sri Lanka (1985); A. COORAY, “Sri Lanka: Oriental and Occidental Laws In Harmony”, in ÖRÜCÜ et al, supra note 7, 71-88.

9. In the case of Scotland, see R. EVANS-JONES, supra note 3, 228.

10. DAVID & BRIERLEY, supra note 4, para. 58 at 77-78.

11. See the Québec Civil Code 1994, enacted by S.Q. 1991, c. 64 and in force1 January 1994, in which the basic law on unjust enrichment, as a quasi-contract, is contained at Arts. 1493-1496. The essence of the obligation is stated concisely in general wording, typical of civilian drafting, at Art. 1493: “A person who is enriched at the expense of another shall, to the extent of his enrichment, indemnify the other for his correlative impoverishment, if there is no justification for the enrichment or impoverishment.” By comparison, in uncodified civilian legal systems, such as Scots law, the original civilian principle of unjust enrichment has been somewhat altered and qualified by the influence of the restitution concept of English common law. See discussion surrounding note 53 infra.

12. See E. ÖRÜCÜ, “Mixed and Mixing Systems: A Conceptual Search”, in ÖRÜCÜ et al, supra note 7, 335 at 344-335.