Mixed Legal Systems

From Max-EuP 2012

by Reinhard Zimmermann

1. Concept

Each of our modern national systems of private law is a mixed legal system in the sense that it has been affected by diverse traditions and influences (reception). The Italian Codice civile of 1942 and the Dutch Burgerlijk Wetboek of 1992 partly perpetuate notions derived from French law but have also received German legal thinking. Some legal systems in the Middle East are based on Islamic conceptions (in family law) but also incorporate (in the law of obligations and in property law) continental European thinking patterns. Swiss law has been received in Turkey and German law in Japan, but over the course of time, both imports have been adjusted to the native legal culture in many respects. Even the leading legal systems within the three major western legal families (doctrine of legal families) form a mixture (albeit with very different proportions) of many different ingredients when considered from an historical point of view: among them mainly Roman law, canon law, native customary law, natural law thinking (natural law) and the lex mercatoria. This is as true of France and Germany as it is of the English common law. Consequently, if the concept of mixed legal systems is applied in this broad sense, it is hardly useful for a taxonomy of legal systems. The term is therefore sometimes reserved for those legal systems which are composed of elements of the major legal families acknowledged today (the Romanistic and Germanic legal families being brought together under the heading ‘civil law’). Thus, German, French, Dutch, or Italian law would not be mixed legal systems, but the legal systems of Algeria (civil law and Islamic law), Pakistan (common law and Islamic law), the Philippines (civil law and common law), Mozambique (civil law and chthonic law), or Israel (civil law, common law and Talmudic law) would be.

The prevailing understanding of mixed legal systems in international discourse, however, is an even narrower one. It relates to those legal systems which are influenced, to a significant degree, by both civil law and common law. The Philippines (that have just been mentioned), Puerto Rico, Cyprus, Mauritius, Thailand and the Seychelles are all examples, but the key members of this group are Scotland, South Africa, Louisiana, Quebec and Israel. The lively interest which mixed legal systems in this narrow sense have attracted in recent times has, obviously, been fuelled by the allegedly fundamental dichotomy between the continental civilian and the Anglo-American common law traditions being increasingly called into question today, as well as by the idea of a harmonization of European private law.

Are we dealing here with a (third) legal family (Vernon Valentine Palmer)? In view of the major differences existing between these legal systems, this is anything but obvious. The laws of Quebec and Louisiana, in contrast to those of South Africa and Scotland, are codified, while Israel is currently preparing a codification of its private law. Israel (which, in addition, is partly influenced by Talmudic law) was at first—after 1948—essentially a common law jurisdiction and has gradually moved closer to the civil law world. In most cases the process has operated in the opposite direction: a civilian legal system has gradually fallen under the influence of the common law. The fact that the major mixed systems, mentioned above, have largely developed independently of one another is a further obstacle to recognition of an independent legal family. For this reason it is also difficult to make general statements that are valid for all mixed systems.

2. Mixed legal systems in Europe, in particular Scotland

In the European Union there are three territories with mixed legal systems: Scotland, Cyprus and Malta; in addition there are the Channel Islands (ie the Bailiwicks of Jersey and Guernsey), which are subject to the British Crown; they are not members of the European Union but belong to its customs territory. The following remarks mainly focus on Scottish private law as one of the five major mixed systems in the world. It is structurally most closely related to Roman-Dutch law in South Africa. There are even certain historical connections between the two systems: 17th century Roman-Dutch law exerted considerable influence on the Scottish institutional writers (institutional textbooks); in addition, the contemporary Dutch universities were particularly popular among Scots studying law. Conversely, the most influential among the early architects of modern South African law was a judge educated in Scotland (William Menzies). Furthermore, in recent times a lively intellectual exchange has been established between these two jurisdictions.

3. Scots and Roman-Dutch law in comparison

a) Similarities

A comparison of Scots and South African law yields an array of commonalities; some of them also mark other mixed legal systems. (a) The role of the judges follows the English example. Judges are seen to be the true custodians of the law (judge-made law), and they enjoy greater social prestige than any other legal profession. Judicial decisions are unanimously accepted sources of law. (b) South African and Scottish courts, by and large, follow the English approach to judicial precedent, though the South African doctrine of stare decisis has always been less strict than the English or Scottish ones. (c) Scottish and South African judges write opinions which in most respects follow the common-law style: they are discursive, refer to prior case law, contain a full account of the facts and are individually authored. Dissents are permitted. (d) The legal profession has traditionally been split, as is the case in England, along the lines of barristers and solicitors (in South Africa: advocates and attorneys; in Scotland: advocates and solicitors), and judges are, as a rule, recruited from the ranks of senior advocates. (e) There has traditionally been a single set of ordinary courts rather than separate hierarchies for constitutional, administrative, commercial, or other matters. While this is still essentially true for Scotland, South Africa now has a Constitutional Court and a separate court structure for labour disputes. (f) Unlike in England, there has never been an institutional separation between law and equity in either Scotland or South Africa. (g) Scots and South African private law have remained uncodified. They therefore present fascinating examples of legal systems in which the traditions of the English common law and the civilian ius commune not only converge but continue to develop in a style that is characteristic both of the civilian tradition before the age of codification and of the English common law. (h) Even in private law, however, there has been statutory intervention in a number of specific matters. The style of statutory drafting and the rules of interpretation of statutes have always been remarkably uniform in the different parts of the United Kingdom, and South African law also adopted these patterns. (i) As in England, but unlike in most continental countries, a law commission has been established in Scotland and South Africa in order to remedy deficiencies of the law. (j) In Scotland and South Africa there has been, over the course of the 20th century, a reaction against the gradual Anglicization of private law emanating, initially, from the universities. The neo-civilian irredentism had a nationalist dimension in both countries. However, the battle between purists and ‘pollutionists’ finally ebbed away on the basis of a pragmatic compromise and recognition of the existence of an independent legal system, which developed from two distinct traditions and still maintains a connection to both of them. (k) Related to this is the fact that professors, ie the academic branch of the legal profession, have gradually acquired influence and have come to be taken seriously by the courts. In many instances they have managed to introduce into the legal discourse rules, thinking patterns, and systematic categories drawn from the civil law. Thomas Brown Smith in Scotland and Johannes Christiaan de Wet in South Africa have been the most prominent figures in this respect. (l) Concerning the core areas of patrimonial law, property law retains an essentially civilian (ie Roman-Dutch or Roman-Scottish) character. Commercial law is largely ‘English’. The most complex processes of fusion of both traditions occurred in contract law and (particularly in South Africa) in the law of delict (law of torts/delict, general and lex Aquilia). Unjustified enrichment, on the other hand, has remained largely unaffected by English law, not least because until recently there was no independent law of unjustified enrichment in England. In both Scotland and South Africa there is, in contrast to England, a fully-fledged law of negotiorum gestio (management of another’s affairs without a mandate). (m) One of the greatest challenges facing South African and Scottish courts and legal writers consists in an assessment of the impact of the human rights on private law which are entrenched in the new South African Constitution of 1996, and in the Human Rights Act of 1998.

b) Differences

Naturally, there are also significant differences between these two mixed legal systems: the English influence on Roman-Dutch law began in 1806, whereas Scots law had already fallen under it in the Middle Ages, and then again from 1707 onwards; the influence of English law is the result of a transfer of sovereignty over the Cape of Good Hope by the Netherlands to England in the one case, and of the voluntary union of two nations in the other, and it occurred in spite of the fact that both the Charters of Justice at the Cape and the Treaty of Union provided that the existing private law in the Cape and in Scotland was to be retained; direct recourse to Roman law and the writers of the ius commune is much rarer in modern Scottish case law than in South Africa; in Scotland English is spoken, whereas in South Africa, Afrikaans has also been an official language since 1909; South African law is faced with the additional question of the relationship of both colonial ‘white’ laws vis-à-vis African customary law; and whereas 19th-century German legal thinking has been influential in the development of South African law, Scots private law is marked by a ‘pandectist deficit’ (George L Gretton).

4. The importance of mixed legal systems

What significance do mixed legal systems have for the international discourse on private law? First, they present a challenge for the established doctrine of legal families. Secondly, they constitute excellent objects of study in the debate about legal transplants and the prerequisites and effects of processes of legal reception. Thirdly, Scots and South African law demonstrate how historical sources and comparative study can be used fruitfully for the development of modern legal doctrine.

For present purposes, however, a fourth point is of central importance. According to a widely held view, a major challenge in the process of the unification of European law lies in reconciling civil law and common law. Or, to put it another way: a modern European private law will also emerge as a mixed legal system in the narrow sense of the term. Obviously, in view of this, there is much that can be learned from the experience of legal systems in which civil law and common law have already found a historical synthesis. In fact both Scots and South African law provide practicable answers to questions that have traditionally been assessed differently by the English and civilian lawyers; thus, in the work of the Lando Commission it became clear in many cases (eg specific performance, indicia of seriousness, anticipatory breach, undue influence, innocent misrepresentation) that the solution ultimately adopted was the one already prevailing in Scots law. These examples show that mixed legal systems, while sometimes following the solution provided by the one or the other tradition, frequently modify that solution. In other cases they seek to develop a middle way. Finally, and perhaps most interestingly for the wider comparative community, there are those instances where Scots and South African law have managed to produce distinctive legal institutions at the intersection of civil law and common law. The law of trusts (trust and Treuhand) provides a prominent example. As has been mentioned already, neither Scotland nor South Africa recognize the institutional division of law and equity. Both have a law of property based on Roman concepts. None the less, both have developed a vigorous law of trusts: genuine trusts without being English trusts. Significantly, the Scottish and South African experiences have been an important source of inspiration for a set of Principles of European Trust Law established by an international group of scholars in 1999.

5. Appendix: The small European mixed legal systems

Political circumstances also led to a reception of English law in the other mixed legal systems in Europe. Cyprus was leased to Great Britain from 1878 and became a Crown Colony in 1925 (before acquiring independence in 1960); Malta became part of the British Empire during the Napoleonic Wars (it became independent in 1964); and the Channel Islands (subdivided into the two administrative areas and jurisdictions Jersey and Guernsey) continue to be directly subject to the British Crown. The continental European heritage in the Channel Islands consists of old Norman customary law; a major influence in Malta was Italian law; and the impact of continental law on Cyprus was at least partly mediated through Ottoman law. In all three areas English co-exists with a native language (Greek, Turkish and Arabic; Maltese; and a local dialect of French).


Reinhard Zimmermann and Daniel Visser (eds), Southern Cross: Civil Law and Common Law in South Africa (1996); Esin Örücü, Elspeth Atwooll and Sean Coyle (eds), Studies in Legal Systems: Mixed and Mixing (1996); Jan Smits (ed), The Contribution of Mixed Legal Systems to European Private Law (2001); Reinhard Zimmermann, Roman Law, Contemporary Law, European Law: The Civilian Tradition Today (2001) 126–69; Vernon Valentine Palmer (ed), Mixed Jurisdictions Worldwide: The Third Legal Family (2001; 2nd edn, forthcoming 2012); Jan Smits, The Making of European Private Law: Towards a Ius Commune Europaeum as a Mixed Legal System (2002); Kenneth GC Reid, ‘The Idea of Mixed Legal Systems’ (2003) 78 Tul L Rev 5; Reinhard Zimmermann, Daniel Visser and Kenneth Reid (eds), Mixed Legal Systems in Comparative Perspective: Property and Obligations in Scotland and South Africa (2004); Jacques du Plessis, ‘Comparative Law and the Study of Mixed Legal Systems’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (2006) 477; Hector MacQueen and Reinhard Zimmermann (eds), European Contract Law: Scots and South African Perspectives (2006); Vernon Valentine Palmer and Elspeth Christie Reid (eds), Mixed Jurisdictions Compared: Private Law in Louisiana and Scotland (2009); Esin Örücü (ed), Mixed legal systems at new frontiers (2010).

Retrieved from Mixed Legal Systems – Max-EuP 2012 on 14 April 2024.

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