Vol. 4.2, September 2000


New editors/Mixed legal systems

New editors
When we started publishing the EJCL, the editorial board consisted of academicians/scientists/lawyers based in Western Europe. As we publish an electronic journal, the fact that the journal is technically based at the servers of Tilburg University in the Netherlands does not entail that the EJCL is a European journal only. We intend it to be a worldwide forum for debate in the area of comparative private law and the methodology of comparative law. Therefore, the editorial board decided to try to attract editors from other parts of the world, and we were honoured when, last year, prof. Symeon Symeonides, dean at Willamette University College of Law and prof. Gainan Avilov, attached to the Research Center for Private Law in Moscow were willing to become members of the editorial board. Still, we felt that we should continue broadening the editorial basis of our journal. Recently, we approached two comparative lawyers from so-called mixed legal systems: prof. Elspeth Reid from Edinburgh University and prof. Jacques du Plessis from Stellenbosch University. Both were immediately willing to become members of our editorial board, and I gladly welcome them!

Mixed legal systems
With reference to my previous editorial, this is a good occasion to make some remarks on the question whether the European Union is developing into a mixed legal system. Recently, William Tetley(1) published a very interesting article entitled: 'Mixed Jurisdictions: Common Law vs Civil Law (Codified and Uncodified)', which was published both in print (Uniform Law Review/Revue de droit uniforme (4) 1999, 591-620 (Part I) and 877-907 (Part II)) and electronically (Part I: http://www.unidroit.org/english/publications/review/articles/1999-3.htm and Part II: http://www.unidroit.org/english/publications/review/articles/1999-4a.htm). In this article (heading: Part I, III, 6; printed version p. 597), Tetley defines a mixed legal system as 'one in which the law in force is derived from more than one legal tradition or legal family'. Under Part I, III, 7 (also p. 597 of the printed version), he distinguishes between a mixed legal system and a mixed jurisdiction. The latter is '. . . a country or a political subdivision of a country in which a mixed legal system prevails.' The author then discusses the situation in Scotland, South Africa, Québec, Louisiana and Egypt. One of his theses is that for a mixed jurisdiction of, e.g., two legal traditions to survive it is required that the jurisdiction has two languages, two court systems and two legislatures, one representing each system. Otherwise one tradition will tend to become dominant and finally take over the other system. Respect and honest interest in the other's law, legal thinking and legal culture is a conditio sine qua non for the continued existence of a mixed legal system. This is a difficult and burdensome process. I share Tetley's optimism in this respect as to, e.g., Québec, and find that Pierre Legrand's views (Le droit comparé, Paris: Presses Universitaires de France, published in the series Que sais-je? No. 3478, 1999, p. 54) in this respect are too pessimistic when he writes that the new Québec Civil Code is the result not of a desire to respect existing diversity, but of a desire to rule. In his own words: 'Profondément marqué par son incivilité, le Code Civil du Québec n'a plus de civil que son nom. C'est que ce code se fonde sur l'exclusion.' By this he means the exclusion of the anglo-québécois.

The debate about the nature and value of a mixed jurisdiction and a mixed legal system is becoming more and more interesting to scholars involved in the study and development of European private law. Is the European Union developing into a mixed jurisdiction and, if so, is this happening only at the European level or perhaps also at the national level? Tetley mentions, as I remarked earlier, the following conditions for the survival of a mixed jurisdiction: each system must have its own language, court system and legislature. Probably in his view, I might add, these conditions also apply in regard to the coming into existence of a mixed jurisdiction. Do these conditions apply within the European context? At the European level, not one particular legal tradition has become prevalent. The search for European law is guided by comparative analysis aimed at finding the best workable solution, taking into account considerations of market efficiency, legal policy making (e.g., consumer protection) and, unavoidably, the political interests of the various member states. It is further submitted that, at least to some degree, the legal systems at the level of the member states are showing the characteristics of a mixed system. In the member states, national law is in some areas gradually replaced by harmonised European law. From that viewpoint, member states are confronted with the existence within their territory of two legal systems: the existing national system and the new rules of harmonised European law. One might call the result a mixed legal system, particularly given the fact that it is national law that will have to fill gaps in, e.g., directives as far as the directive does not leave these gaps to be filled by the European Court of Justice. Another phenomenon that I would like to mention here is that comparative analysis which crosses the boundary between the various legal traditions in Europe is becoming more and more important in the national (non-European Union) legislative and judicial practice. Of course, there will still be numerous matters in which politicians and judges of a member state will only be involved in a strictly national debate, but the influence of comparative analysis is growing.

It should, therefore, come as no surprise that legal education in Europe is becoming more comparative in nature, and it is argued by some that the teaching of only national law should be supplemented or even replaced by teaching subjects on a comparative basis, looking at the various European legal traditions. The law faculty of McGill University, as Tetley mentions in his article, is a forerunner with its combined civil law/common law programme, but also the European Law School Programme of Maastricht University should be mentioned here. More information can be found at their web sites: http://www.law.mcgill.ca/ and http://www2.unimaas.nl/~fdr/studies/els/uk/. The influence of European law on legal education is the theme of a (by invitation only) conference organised by Tilburg University. Further information on this conference can be found at: http://cwis.kub.nl/~frw/lawconf/index.htm. Finally, I should note that the more general theme of comparative law and legal education is one of the topics of the Centennial World Congress on Comparative Law, which is hosted by Tulane University (conference web site: http://www.law.tulane.edu/inst/complaw2000/).

Sjef van Erp,


1. Law professor at the Faculty of Law of McGill University (Montreal, Canada); personal web site: http://www.admiraltylaw.com/tetley/index.htm.

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