Mixed Legal Systems, especially the South African Legal System, and the Study of Comparative Law
Jaakko Husa’s review of Esin Örücü’s The Enigma of Comparative Law: Variations on a Theme for the Twenty-First Century (2004) in this issue prompts one to reflect on the unsettled state in which the discipline of comparative law finds itself at present. The traditional approach, with its core tenets of functionality and the presumption of similarity, as well as its predisposition towards Eurocentric and private-law-based perspectives, is constantly being challenged. And yet, no alternative approach has convincingly supplanted it. Although Örücü is not unsympathetic to the traditional approach, she has strongly emphasized the importance of fresh perspectives on methodology and especially the need to be more adventurous in identifying systems suitable for comparison. In the spirit of this challenge, I will use this opportunity to make a few remarks on comparative law and mixed legal systems. Mixed legal systems are essentially systems which display such strong influences of a variety of legal families that they cannot be accommodated under a specific family. Traditionally, the label has been used to describe mixes of civil law and common law – the most notable jurisdictions which fall into this category being Scotland, Louisiana, Quebec, Sri Lanka, the Philippines, Puerto Rico, Israel and my own country, South Africa.
The first remark relates to the conventional classifications of legal families. Thus far, these classifications have not succeeded in adequately accommodating mixed legal systems. The approach essentially has been that we should wait and see whether these systems would in due course move in the direction of one of the main families – an expectation which need not be met. The conventional classifications have further tended to gloss over the phenomenon of legal pluralism, which in the South African context is reflected by African customary law not being generally perceived as forming part of the more prominent (European) civil law and common law “mix”. Phenomena like these challenge comparative lawyers to re-evaluate the conventional classifications and to recognise that mixed systems have their own (at times quite complex) identities, instead of condemning them to classificatory limbo. It may well be that a much greater variety of groupings of mixes is possible (see for example the divisions suggested in the Ottawa study, available at http://www.droitcivil.uottawa.ca/world-legal-systems/eng-monde.html) and that legal systems, even when viewed in terms of conventional classificatory criteria such as style, history and institutions, are generally less pure, and the conventional families consequently smaller, than thus far has been believed.
The second remark concerns the debate on “legal transplants” or “legal borrowing”. No-one can seriously dispute that whenever a rule is “transplanted” from one system to another there inevitably is some change of context, which in turn must impact on the meaning of the rule. However there has been a “neo-romantic” tendency to overstate the importance of context (especially cultural context), and hence the degree of change in meaning associated with transplanting. Here the mixed jurisdiction experience is again relevant, for it vividly illustrates to what extent ostensibly different contexts are in fact compatible, and even how legal culture itself can be transplanted. In the South African context, for example, the introduction of English law to the Cape was greatly influenced by the fact that colonial judges often were culturally more immersed in the donor than the donee system. This indicates that transplantation can be a quite complex phenomenon and that it can be dangerous to work with models that generally assume cultural homogeneity and emphasise mutual incomprehensibility.
The third remark relates to the extent to which a comparative perspective could aid legal development, and especially the role which the judiciary could play in such a process. Unlike the parochialism and fear of loss of sovereignty which characterises some modern American judicial thinking in constitutional matters, judges in mixed jurisdictions have traditionally been receptive to foreign influence. Obviously, not all this borrowing has been positive: there is good reason to be sceptical about claims that these systems generally act as legal laboratories where the best rules are selected from various systems. Nonetheless, their experiences at least reveal how the judiciary, in conjunction with the academic community, could improve the quality of a system by creatively resorting to foreign law – for example through filling gaps, interpreting open-ended norms or taking advantage of genuine (as opposed to artificially created) similarities. These experiences suggest that there may be greater scope for a comparative perspective to influence legal development positively than is appreciated in systems with an overly nationalistic outlook. Further, the way in which the experiences underline the importance of “fit” when borrowing, so as to assist the rational, pragmatic legal development of the law, is particularly significant. In the South African context, for example, there have been positive experiences with adopting compatible common law constructs in civilian contractual surroundings, such as the law relating to undue influence and repudiation, and with rejecting incompatible constructs, such as the doctrine of consideration.
This brings us to the fourth remark, which relates to the development of private law in Europe – a topic which regularly features in the pages of this journal. The point has been made for some time now that the experiences of mixed systems in blending civil law and common law could assist in the development of a European legal science (see e.g. Reinhard Zimmermann, Roman Law, Contemporary Law, European Law: The Civilian Tradition Today (2001)). Given the obvious communalities, this is an argument that deserves to be taken seriously, as long as it is appreciated (as pointed out above) that it cannot be accepted that mixed systems generally adopted superior solutions, and therefore necessarily point the way. The record, at present at least, reveals too great variations in quality to warrant mixed jurisdictions enjoying such a status. I unfortunately find myself in disagreement with the view, advocated by Jan Smits in the context of debates on the development of European private law, that it is of particular value to examine the mixed jurisdiction experiences through the lenses of economic or evolutionary theory. Even when it comes to predicting in which areas convergence would most likely take place, there appears to be more straightforward explanations than those based on a competition of rules or a survival of the fittest.
The fifth and final remark relates to the crucial impact which language can have on the use of the comparative method. Here the experiences of mixed jurisdictions, and those of South Africa in particular, confirm that linguistic constraints may diminish the ability of jurists to draw fully on a variety of traditions in seeking to improve their quality. For example, a strong argument can be made that the widespread reference to sources from English-speaking jurisdictions by the courts at times has more to do with the relative ease with which these sources can be accessed than with any inherent superiority they may have over sources from jurisdictions with less well-understood languages such as German or Dutch. Nonetheless, experience has shown that even a limited number of local jurists with sufficient appreciation for and ability to draw from jurisdictions with such languages can still have a notable impact on legal development. In the South African context this is not only reflected by aspects of the development of the law of contract and criminal law in the twentieth century, but also by the more recent impact which local jurists with an understanding of German law have had on post-apartheid constitutional law. This is a message from which comparative lawyers who at present may be rather disillusioned with the state of the discipline, and especially with the constant reminders of mutual incomprehensibility, may derive some comfort.
Jacques du Plessis,
Tell a colleague about this article.