The main types of religious law are Sharia in Islam, Halakha in Judaism, and canon law in some Christian groups. In some cases, it is purely individual moral leadership, while in other cases it is intended and can serve as a basis for a country`s legal system; The latter was particularly common in the Middle Ages. [30] The classification as “best” rule is, of course, characterized by a high degree of subjectivity and depends on the situation. In retrospect, the choice of a mixed system is not always optimal. As Du Plessis puts it in his article “Comparative Law and Mixed Legal Systems” for The Oxford Handbook of Comparative Law at page 495: “It will simply be necessary to accept that mixed systems, like other systems, can sometimes do good and sometimes evil.” This article aims to explain why, in my view, mixed legal systems are not at a transitional stage of civil or customary law and will not end up as one of the two “classic” legal paths. Rather, they will expand their borrowing and transplantation efforts and strive to achieve the “perfect rule” among the available rules of existing civil law, just as all common law systems do when they fail to find a flashy and creative new solution in a particular area. This gives them great potential as models when legal harmonisation and unification are on the agenda or when the two classic Eurocentric legal families stagnate and need inspiration. Mixed legal systems such as those in Scotland and South Africa[1] differ from the classical common law and civil law systems in a combination of aspects of both traditional families. This is why they are also called “hybrid systems”[2] or “pluralistic jurisdictions”[3] and embody a third legal family[4][5]. For example, according to Du Plessis[6] and Palmer[7], the mere existence of both customary and civil aspects is not enough[8]. They called for sufficient emphasis on these two elements to speak of a “mixed legal system in the strict sense,” while the aspect of bilingualism, that is, the appearance of more than one language, is perceived in a legal system as a characteristic rather than a criterion.[9] The concept of mixed legal systems is essentially a modern idea that is increasingly shaping discussions about the nature of the world`s legal systems.

Fifty years ago, mixed systems were treated as legal aberrations and barely discussed. Emphasis was placed on a consistent order of large systems, and no place was found for composites and hybrids in taxonomies. However, under the influence of studies on “mixed jurisdictions” and legal pluralism, there is a growing awareness that mixed systems, whether narrowly or expansively defined, are a widespread and recurring reality. They have occurred too often and lasted too long to be considered accidents and anomalies. A recent study states that ninety-one jurisdictions can be classified as “civil law” and forty-two as “common law”. However, a higher number – ninety-four – are listed as “mixed” systems. The study classified these mixtures into ten subcategories, including “common law and Muslim law”, “civil law and common law”, “Muslim and customary law” and “common law and civil law”. It is therefore evident that all the traditions discussed in the previous chapters of this companion – Western, East Asian, Jewish, Islamic and sub-Saharan – provided the legal material from which this large number of hybrids was created. (The legal systems listed are listed in the Annex to this chapter.) [18] Reid, Tulane Law Review 2003 7, which also points out that this principle does not apply to Israeli law, which has evolved unlike most other mixed legal systems. Today`s national legal systems are generally based on one of four basic systems: civil law, common law, law, religious law or a combination of these.

However, each country`s legal system is shaped by its unique history and therefore includes individual variants. [1] The science that studies law at the level of legal systems is called comparative law. The most common is the birth of a mixed legal system as a product of failed colonialism, in which a culture was imposed by a colonialist power but an indigenous culture persisted to some extent.[15] Many African countries are examples of this. 3 Why mixed legal systems could merge into pure civil law or common law systems In the European Union, the Court of Justice adopts an approach that combines civil law (based on the Treaties) with the importance of case law. One of the most fundamental documents in the development of common law is the English Magna Carta,[17] which limited the power of English kings. It served as a kind of medieval bill of rights for the aristocracy and judiciary that developed the law. 5 Potential of mixed legal systems as creative sources of their own types of rules Religious law refers to the notion of a religious system or document used as a source of law, although the methodology used varies. For example, the use of Judaism and halacha for public law has a static and immutable quality that excludes amendment by legislative acts of government or development by judicial precedent; Christian canon law is closer to civil law in its use of codes; And Islamic Sharia (and fiqh jurisprudence) is based on precedent and reasoning by analogy (qiyas) and is therefore considered similar to common law. [21] [28] Borrowing in mixed jurisdictions is primarily from common law sources.

Lessons learned from civil law are rare exceptions. Interestingly, borrowing never takes place between individual hybrid systems. [1] Other examples include Quebec, Cameroon, Cyprus, Sri Lanka, Louisiana, the Philippines, Greece and Israel. A 2005 survey, the Ottawa Study, concluded that of the 232 jurisdictions analyzed worldwide, mixed governments are the largest family. The survey is available on The civil law (also known as Roman) and common law systems can be considered the most widespread in the world: civil law, because it is most widely used by the land mass and the general population, and common law, because it is used by the largest number of people compared to any civil law system. [2] [3] [4] The method of borrowing[28] and transplantation contributes to modern mixed legal systems[29]. These systems have used the fundamental possibility of choosing among the rules of different systems in order to identify and use the “best”[30] for their purposes[31]. It should be noted, however, that the loan does not guarantee similarity.[32] On the contrary, a legal rule unfolds completely differently when transplanted into an environment different from existing rules.

[4] In addition to the important and Eurocentric main division in civil law and common law and thus the classification of mixed legal systems as the third group, other legal families or traditions such as Talmudic, Islamic, Hindu, Asian, Nordic and Eastern are also recognized. But however one classifies mixed legal systems, their very existence very quickly leads to questions about their development, if any. The fact that mixed legal systems, which have been developed primarily through the incorporation of common law features into structural and procedural areas, whereas substantive law consists of distinct civil and common law models,[10] raises the question of whether they constitute a genuine third legal remedy and not a hybrid and imperfect existence between the two important legal channels of common law and law. civil with a tendency to adopt one or the other legal route[11]. Legal comparators and economists who defend the theory of legal origins generally divide civil law into four distinct groups: the countries of both categories are mainly located on the trade routes of the 17th and 18th Europeans. Century. After the introduction of civil law and a few hundred years later the arrival of common law, these countries, which developed in cultural or territorial diversity, became mixed systems[18]. It should be noted that the adoption of common law elements is attributed to the political dominance of the Anglo-American tradition rather than by voluntary reception.[19] [8] As Visser says in his 2003 article 78 (1&2) Tulane Law Review “Cultural Forces in the Making of Mixed Legal Systems” at page 46: “In a sense, most, if not all, legal systems in the Western world are mixed, since almost all the systems one wants to distinguish have been constructed from a variety of different sources.” However, hybrid systems do not form a homogeneous group that provides uniform answers to certain questions. Because of their cultural and geographical isolation,[12] they sometimes give fairly similar answers to legal questions, and then the solutions differ considerably in their approaches.[13] In the second half of the 20th century, German legal theory gained increasing influence in Argentina.

[5] The term “legal family” was introduced by Zweigert & Kötz. According to Jaques Du Plessis, who, in his contribution “Comparative Law and Mixed Legal Systems” for the publication Reimann & Zimmermann (ed.), The Oxford Handbook of Comparative Law (Oxford 2006) at page 480 describes a family of laws as a classification instrument that serves coherent explanatory objectives for the realization of the similarities and differences of certain legal systems and for the realization of the developments of these systems.