Mixed Legal Systems: Patterns of Development
This issue of the Electronic Journal of Comparative Law reproduces a selection of papers presented at a conference on 'Mixed Legal Systems: Patterns of Development', which was held at the University of Edinburgh in December 2000. The conference was a collaborative project between the Edinburgh Law School and the Eason Weinmann Center for Comparative Law at the Tulane Law School. This complex subject was chosen in response to the comparative law community's growing interest in the concept of mixed legal systems, as marked by the publication of an important new book, Mixed Jurisdictions Worldwide: The Third Legal Family, edited by Professor Vernon Palmer of Tulane.(1)
The conference explored some of the traditional areas in which the mixing of traditions has been most apparent. The law of obligations, for instance, often offers many interesting examples of the tension created by the meeting of civil law and common law. Thus the collection begins with a prime illustration: writing on Louisiana, Professor Palmer considers the processes which have led to the progressive Americanisation of tort law, notwithstanding the essentially civilian basis of tort liability as originally stated in the Civil Code. However, the speakers also explored the idea of mixture in the context of future directions of legal development. Professor Örücü's paper moves beyond the domain of private law, to which comparative lawyers have often confined themselves, and takes her examples instead from public law. In reviewing the changing processes by which mixedness continues to occur, she finds evidence that new varieties of mixed systems are emerging both within Western Europe and in 'systems in transition'. Moreover, she shows that growing numbers of areas of law can now be regarded as mixtures, and that their mix includes many new elements alongside the traditional. Professor Vaver's paper, which examines copyright law within the European Union, focuses in detail on one such new mixture, and yet this is obviously not a topic normally encountered in accounts of mixed legal systems. Finally, Lord Reed's paper turns to Scots law and examines the profound change in legal culture which is occurring in the Scottish courts as a result of the incorporation of the European convention on Human Rights into domestic law. This process of 'constitutionalising' areas of private law finds interesting parallels in South Africa, a fellow mixed jurisdiction.
The message to be taken from these papers is that mixed legal systems are indeed deserving of increased attention from comparative lawyers. Above all at the present time, this is because of the relevance of the mixed systems to current debates about the convergence of legal traditions in Europe.(2) But these papers also raise many fascinating issues in connection with the redefinition of mixedness, and in doing so they assist our understanding of patterns of legal development in Europe and beyond.
The organisers of the conference at which these papers were originally presented wish to acknowledge with gratitude the generous financial support of the British Academy.
1. Cambridge University Press, 2001. This volume offers a comparative survey, drawing on the reports of contributors from South Africa, Scotland, Louisiana, Quebec, Puerto Rico, The Philippines, and Israel.
2. For an account, in particular, of Scots participation in the Commission on European Contract Law chaired by Professor Ole Lando, see Hector L. MacQueen, Scots Law and the Road to the New Ius Commune, vol. 4.4 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (December 2000), <http://www.ejcl.org/44/art44-1.html>.