Methodology and Innovation in Mixed Legal Systems

The World Society of Mixed Jurisdiction Jurists organised its third international congress from 20 -23 June 2011 at the Hebrew University in Jerusalem. The leading theme was “Methodology and Innovation in Mixed Legal Systems”. Several keynote speeches were held. Justice Eliezer Rivlin, (Deputy President of the Supreme Court of Israel) spoke about Israel as a mixed jurisdiction, Vernon Palmer (Tulane Law School, New Orleans, USA) addressed the topic of double reasoning in mixed legal systems: code and case law as simultaneous methods, Thomas Bennett (University of Cape Town, South Africa) examined the concept of “Ubuntu” as a new doctrine of equity in South African law and Mauro Bussani (University of Trieste, Italy) spoke about mixed approaches to mixed jurisdictions.

The leading theme was discussed during various parallel sessions in which subtopics were analysed, looking at different areas of law (public law and private law) and different regions (Africa, Asia, Europe, more particularly the Mediterranean, Louisiana and Québec.

From a more European perspective it is interesting to note that the European Union now has several more traditional mixed jurisdictions (Cyprus, Malta and Scotland) and jurisdictions in Central and Eastern Europe which, due to influence from the Québec Civil Code, now de facto have become mixed with regard to their private law. A striking example is Rumania. The new Rumanian Civil Code is for about 70% the same as the Québec Civil Code and Rumanian lawyers now look at Québec legal scholarship and case law for inspiration.

It is also generally accepted that European law as such belongs to the mixed jurisdictions. At a European level the law is developed autonomously, independent from the laws of the Member States, to avoid that one or more Member States might be seen as imposing their law on other Member States. The result is that European law (both in legislative and in case law format) is prepared by conducting thorough comparative legal research, but, at the end of the day, is based on what is required given the economic constitution upon which the European treaties are built: the creation of an internal market rooted in the freedom of goods, persons, services and capital. European law is therefore the result of a mixture of legal traditions, modes of thought and legal cultures: Common Law, Civil Law with all its variations (French and German subtraditions), and Scandinavian law (civil law systems, but with a Common Law pragmatic approach to law) and, of course, the mixed legal systems.

As part of the session on innovation: concepts and contexts Sjef van Erp presented a paper on the changing structure  of European property law, looking at the basic building blocks of all European property law traditions: subjects, objects and relations.

A paper which should be mentioned specifically concerned comparative law teaching. Stephen Smith from McGill University, Montreal, Canada discussed comparative legal scholarship as ordinary legal scholarship. His main thesis is that every lawyer is a comparative lawyer, not just when legal systems are compared. Any lawyer analyses a fact pattern from the perspective of various legal areas (e.g. contract and tort). By analysing case law, lawyers compare fact situations and legal reasoning. Lawyers, in other words, are comparativists by nature. It is, furthermore, this comparative attitude that makes studying law an academic exercise and not just a “how to do” study: law students are tained to be lawyers, not plumbers, so Stephen Smith. Teaching law on a comparative and European basis, it can be concluded, is therefore not fundamentally different from teaching law on a strictly national basis. Fear of law curricula based on the transsystemic teaching method of the McGill law faculty or the European Law School of Maastricht University, with its trans- and suprasystemic teaching method, is therefore unjustified. On the Maastricht teaching method see Sjef van Erp, Teaching Law in Europe: From an Intra-Systemic, Via a Trans-Systemic to a Supra-Systemic Approach.

The proceedings of the second international congress can be found electronically on the website of the Electronic Journal of Comparative Law. EJCL will also publish the proceedings of this conference, which will also be published in print.

~ Sjef van Erp

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