The creation of genuine common or general national laws, a state-oriented legal “system” and the elimination of competing jurisdictions has been a very long historical process throughout Europe. The law was not only dispersed in many jurisdictions, often not separated from other normative orders, but it was also the result of complex mixtures and movements. Most comparative jurists and many legal historians are aware that no legal tradition is a purely national growth. All modern traditions or legal systems are hybrids, each created to a large extent by the propagation, transplantation and reception of laws. But the historical hybridity of European legal systems and the spread of law that facilitates this mixing are too rarely taken seriously by many Western jurists. And this blindness to the diversity of the past obscures our understanding of the Western and global pluralism of the present. This article suggests some confusion (the “problem”). However, there is a significant difference of opinion on the actual meaning and components of a mixed system. Scholars of the “mixed jurisdiction” tradition, following in the footsteps of early British comparatists (see section 17.2 below), tend to limit their scope to a single type of hybrid where the most comprehensive research has been conducted – the common law and civil law mixtures. In this perspective, the number of mixed systems in the field is reduced to less than twenty worldwide. However, many researchers under the influence of legal pluralism (including the comparatists who conducted the Ottawa study mentioned above) use a more comprehensive factual definition that broadens the scope and knows no obvious limitations.
The concept of mixed legal systems is essentially a modern idea that is increasingly shaping discussions about the nature of the world`s legal systems. Fifty years ago, mixed systems were treated as legal aberrations and barely discussed. Emphasis was placed on a consistent order of large systems, and no place was found for composites and hybrids in taxonomies. However, under the influence of studies on “mixed jurisdictions” and legal pluralism, there is a growing awareness that mixed systems, whether narrowly or expansively defined, are a widespread and recurring reality. They have occurred too often and lasted too long to be considered accidents and anomalies. A recent study states that ninety-one jurisdictions can be classified as “civil law” and forty-two as “common law”. However, a higher number – ninety-four – are listed as “mixed” systems. The study classified these mixtures into ten subcategories, including “common law and Muslim law”, “civil law and common law”, “Muslim and customary law” and “common law and civil law”. It is therefore evident that all the traditions discussed in the previous chapters of this companion – Western, East Asian, Jewish, Islamic and sub-Saharan – provided the legal material from which this large number of hybrids was created. (The legal systems listed are listed in the Annex to this chapter.) A Study of Mixed Legal Systems: Endangered, Entrenched, or Blended takes the reader on a fascinating journey of discovery.
It includes case studies from a number of systems from around the world: Cyprus, Guyana, Jersey, Mauritius, Philippines, Quebec, Saint Lucia, Scotland and Seychelles. Everyone connects their legal legacy in new ways. Large and small, in Europe and beyond, some are sovereign, others are part of larger political entities. Some are monolingual, others bilingual, others multilingual. In addition to an analytical introduction and conclusion, the chapters examine how elements of these mixed systems can be considered “rooted”, “endangered” or “mixed”. It examines how this process of legal change works, asks whether some systems are more at risk than others, and describes the strategies that have been taken to accelerate or counter change. Studies include examining the colourful history of courts, their complex relationships with higher-level legal systems and traditions, as well as language, legal education and legal actors. The volume also explores whether the experiences of these systems can say anything about legal mixing and movement in general.
