My focus is on “mixed legal systems”, though my teacher Alan Watson, whose memory is honoured here, never seemed to me to be especially interested in “mixed systems” as an analytical category; the idea of “Legal Transplants” would be seen by many, however, as his most important legacy.
As a legal historian I have always been rather wary of classifications, as they can limit as well as facilitate discussion. This is therefore more a history, particularly an intellectual history, of the development of the use of the terms “mixed [legal] system” or “mixed jurisdiction” in English-language use, in the context of comparative law as it developed in academic discussion in the United Kingdom.
Two lines of thinking underline this paper: at some level, all legal systems are mixed, and that how one defines a mixed system tends to determine which systems one regards as mixed; second, that in the United Kingdom comparative law developed as a discipline under the impact of the British Empire, and that this determined the concerns and approaches of most British scholars until the relatively recent past.
According to Ken Reid, the idea of “mixed system” originated with F. P. Walton, a Scots advocate who had an imperial academic career in Quebec and Egypt; R. W. Lee another scholar with an imperial career was the first to use it in something like the modern sense. It was Professor Sir Thomas Smith, however, who first used “mixed system” in the technical modern sense in an article published in 1956. For Smith mixed systems were those that “have shared both in the Romanistic and Anglo-American traditions of legal thought”, and consisted of Scotland, Sri Lanka, Quebec, Louisiana, and South Africa. The mixed nature was not just that criminal law might be English and private law civilian, but rather that English principles and rules had started to penetrate the civilian legacy. This was, of course, a highly Eurocentric vision.
Britain created an essentially devolved Empire, relying on its economic dominance along with the relative homogeneity of the white population, with its loyalty both to the monarchy and the idea of Britain, in order to maintain influence and control. In 1895, it could accordingly be written of Victoria that “[n]o monarch has ever formed a constituent part of so many Legislatures as the Queen …. Some sixty Legislatures are at work in the British Empire”. The picture was further complicated by the fact that Britain generally preserved the existing laws in the territories it acquired by conquest and treaty from other European colonial powers. William Burge wrote in 1838 that the “possessions of Demerara, Berbice, and Esquibo, which are now united under one government by the description of British Guiana, the Cape of Good Hope, Ceylon, Trinidad, St. Lucia, Lower Canada, Guernsey, Jersey, and the Mauritius have been allowed to retain the laws which they enjoyed at the periods when they became annexed to the British crown”. This meant that courts, and ultimately the Privy Council, could have to deal with French law both pre- and post-codification, Spanish law, and Roman-Dutch law.
Burge tended to organize his account of laws in the British Empire around the major axis provided by the traditional division of law into civil-law systems and common-law systems. And though Walton did touch on the idea of a mixed system, and saw links between Quebec, Louisiana, and Egypt, he tended to stick to the traditional binary divide. Lee, however, did develop the idea of mixed systems rather more, if not quite in the way meant by T.B. Smith. For Lee, Roman-Dutch law was “mixed”. In a small number of articles in the 1920s and 1930s, he used the term in something like the modern sense, though in a rather broader way.
T.B. Smith probably drew the term “mixed system” from his rea
ding of Lee, appropriating it to his own ideological ends. He gave it more intellectual content, by drawing on the work of the French comparative lawyer, Henri Lévy-Ullmann. The Frenchman argued that there could be a future synthesis of the Common law and the Civil law, leading to a world law in the twentieth century. Lévy-Ullmann noted that the Scots law had been “infiltrated” by English law, through judicial decisions, but also there was a measure of fusion through codifying statutes. He argued that where English law had penetrated Scots law it was in those subjects where the Scots law, like other laws descended from the Roman, was imperfect on account of the defective state of the Roman law itself. While Lévy-Ullmann had been happy to see this synthesis, for Smith it was a problem, requiring resistance.
British colonial writers assumed that the places to which European settlers came were essentially unoccupied, and that the Europeans brought with them their own laws. The practice was also, in colonies ceded from other European powers, to preserve the existing private law; but the creation of English-style courts, and the introduction of the traditional methods of British government under the crown, introduced other legal practices founded on ideas of the common law. The development in Louisiana was similar—the private law remained Civilian, but Anglo-American criminal law, public law and governmental structures were introduced, along with an eventually bicameral legislature and a governor. Hence the idea, if not initially the term, of “mixed systems” developed. It was the colonies of the British Empire that led to the development of the basic idea of a “mixed system”; T. B. Smith adopted this for his own ideological and nationalist ends.
Posted by Professor John W. Cairns (Edinburgh), based on a presentation done at the BACL Seminar in Preston, 2 September 2019.
British Association of Comparative Law 