Mixed legal systems

This paper seeks to make the case for considering if there truly are any "pure" legal systems in the world. It will first attempt to discuss different definitions of mixed legal systems, as well as an analysis of the different levels of mixedness. Subsequently, it will make a proposition, supported by the case studies of South Korea, Japan and the Philippines, of whether it is possible for a pure system of law to exist. Summarily, this paper seeks to propose that there will always be both pure and mixed legal systems in existence. Definitions

The classic definition of a mixed system stems from F. P Walton: "Mixed Jurisdictions are legal systems in which the Romano-Germanic tradition has become suffused to some degree by Anglo-American law. "1 Subsequently, a more modern definition developed from Robin Evans-Jones: "What I describe by the use of this term in relation to modern Scotland is a legal system which, to an extensive degree, exhibits characteristics of both the civilian and the English common law traditions. "2 Substantiating this are the examples of Louisiana, Quebec, Scotland and Seychelles.

Both definitions effectively indicate that a 'mixed legal system' is one where the common laws and the civil laws interact and function together instead of just co-existing separately. Accordingly, this factor is pertinent in examining if a pure legal system truly exists. The CISG and the mechanism behind a mixed legal system In drawing a parallel with the mechanism behind the formation of the Contracts for the International Sale of Goods (CISG), it is clear that the same can be said of the mechanism behind the creation of a mixed legal system.

Briefly, the CISG is labeled as the uniform international sales law and is a key instrument in international trade and commercial law. Interestingly, as of 2004, the CISG has been ratified by 65 countries across the world. Taking a step back, the concept of an international sales convention was to provide the default rules for sales contracts between parties located in different countries, much similar to the concept of casting a set of laws in a legal system.

The CISG is essentially a product of the harmonization of laws which eventually resulted in a unified system in itself. Similarly, a mixed system consists of the wheels of transplants, legal borrowing and convergence, oiled by harmonization. Without straying from the initial intention of this example, it is evident that a parallel can be drawn to better illustrate our understanding of a mixed system's foundations and the basic mechanism behind it. Rules and systems

The substantive laws (rules) and the components of a system (actors, processes, institutions) must not be viewed separately. Essentially, using solely the rules of a country as a yardstick for measuring if a system is mixed will superficially classify a wide range of countries as mixed systems. This is an extreme viewpoint to take. This point is easily substantiated by the example of the existence of Syariah law in Singapore. The common law is seen to exist alongside Muslim laws, but they do not interact.

If a Muslim Singaporean were to take his case to the Syariah Courts, he cannot "forum-shop" and choose to turn to the Common law courts should his first attempt render an undesirable outcome. Herein lies the illustration that the two laws merely co-exist and never interact as ultimately, Syariah Law is still subsumed under the Common Law. By looking solely at the mixing in the rules is a very dangerous route to take as there are many countries that have different areas of laws that co-exist together but do not interact.

Arguing that there are no pure systems-is this true? In substantiating if there can be a pure legal system, we look to three points. Firstly, 'pure laws' were effectively mixed historically. The world's legal systems are described as diversified blends with unlimited possible recombinations: chthonic laws, religious laws (Jewish, Hindu, Islamic or Canon Law), law merchant, natural law, Roman Civil Law, Common Law and so forth. It should not be at all surprising to discover five or six layers of exogenous elements in any single private law system one cares to examine.

3 Using the example of the European Union, it is evident that most of the civilian legal systems can easily be regarded as mixed systems. And they have been mixed for many centuries an amalgam of indigenous and exogenous sources. 4 Reinhard Zimmerman has also commented that none of the private laws in Europe have remained "pure" in their development since the Middle Ages and all constitute a mixture of many different elements, Roman Law, indigenous customary law, canon law, mercantile custom and Natural Law theory.

5 Consequently, this applies to the world's legal systems which can also be described as diversified blends of mixtures. Hector MacQueen argues that English law has been transformed in the past 2 centuries and cites the decline of the doctrine of consideration in contract, the continental origins of Hadley v Baxendale and recent legislation that abolished the privity principle in order to bring English law into line with other jurisdictions of the EU.

6 This is also exemplified in the history of the Roman Empire which effectively generated mixed systems of private law at an early date and these early romano-germanic systems had mixed elements, proving our point that all systems are mixed as it is therefore impossible to build any sort of "pure" system with materials taken from their layered foundation. Secondly, mixtures are pervasive and they are center stage. 7 At the risk of sounding philosophical, we live in a predominantly mixed and plural world.

Mixtures are not strange and abnormal; in fact mixed systems outnumber pure systems of law and include some of the most populous areas on the globe. Quoting Palmer again, we must abolish the idea that these are historical accidents and restrain from classifying them as "odd men out" in a binary civil law/common law world. 8 In effect, the European Union is a mixed jurisdiction or is becoming a mixed jurisdiction as there is a growing convergence within the Union between Europe's two major legal traditions, namely the civil law of the continental countries and the common law of England, Wales, and Ireland.

Interestingly, under the CISG the concept of 'breach of contract' has already been achieved across Europe, which is a feat that required a break with a long tradition in certain civil law countries. Lastly, without recognizing it we use private law terminology as a kind of proxy for judging the nature of entire legal systems. Terms like "Common Law" and "Civil Law" are thrown around loosely although they say little or nothing about the constitutional, administrative or criminal laws in such systems.

9 The crux of the problem is not making it clear enough that this is merely a classification of the world's private law systems, and not their entire legal systems. Are all legal systems mixed? It would be extreme to classify all legal systems as a mixed legal system because their historical roots of legal families indicate that they have been mixed right from the start. What is important is the treatment of the laws by each country and its 'end product'. This is so as the law in each system is not stagnant.

What may be mixed in the past may be 'pure' after a few centuries. Therefore, it would be an overgeneralization to group all legal systems as 'mixed' and it would be more appropriate to focus on the treatment of the laws instead. How the treatment of the laws is like by each country would be discussed later. With regards to the argument that mixtures are pervasive such that change is the center stage of the world, it should be noted that the convergence of the laws are mainly restricted to commercial laws such as the CISG.

The constant postponement of drafting a common civil code in the European Union simply reinforces the difficulty of converging other areas of the law within countries. Further, even though there is a convergence of commercial laws in the European Union, it does not automatically render the European nations to be of a 'mixed jurisdiction'. It should be recalled that the classification of a legal system should not be solely dependent on any mixing within the laws itself. Instead, focus should be on the interactions between the laws and the system itself.

Focusing too much on the mixture of the laws would lead to absurd classifications of legal systems in the world. Ultimately, it is undeniable that countries do transplant laws into their own legal system constantly for ultimately they want what is best for their own legal system. However, the mere transplantation of the laws does not render the country a mixed legal system. The distinction should be based on the treatment of laws by the countries and the unique 'product' of each legal system. The Four Stages of Development of Autonomous Law

Kenneth GC Reid suggested that there are four stages of development for Autonomous Law10. First, there is the arrival of the foreign doctrine. It may have arrived suddenly as a product of legislation or court decisions or gradually as a kind of legal osmosis. There would then be the period of reaction where the doctrine transplanted may either be rejected, though unusual, or welcomed as a useful and essential doctrine. Subsequently, the law would undergo assimilation with the underlying law of the country.

This stage is often slow and sometimes will be incomplete. The doctrine is used unabated. Finally, the last stage would be the stage where the doctrine is reconstructed. In this stage, the doctrine is taken apart and reconstructed in a manner that is compatible with the underlying law. The original transplanted doctrine would be stripped of all peculiarities of the donor system and possess its own inherent 'flavour'. Varying degrees of mixing in each legal system

Due to the difference in the treatment of the laws by different countries, each at a different sage on the Reid model, there is a whole spectrum of "mixedness" between the law and the system. On one end of the spectrum, there are legal systems where the transplanted law or system do not interact with the underlying system at all, akin to oil and water. These are typically the pluralistic systems such as Indonesia where the two systems work in parallel and there would be no mixing at all since there is no interaction going on.

An example would be the existence of Syariah Laws in Singapore. The two systems are separate and have no interaction at all. In matters such as divorce, Muslims are only permitted to go under either the Shyriah Law or the common law and not both. Further, if one was to be under the jurisdiction of Shyrial Law, the decision of the Shyriah Courts are final, there are no appeals made available to the Supreme Court of Singapore. In the middle of the spectrum exists the systems which are akin to a salad bowl.

In this category, there is visible interaction between the transplanted doctrines and the inherent system. However despite the mixture, various distinct components of the parent system are still identifiable. The classicially mixed jurisdictions typically fall under this categoty. An example would be that of Scotland where the legal system consists of distinct common law and civil law elements such as an evident civil heritage in Scots private law but in areas in commercial, labour and administrative matters, it is heavily affected by the English common law11.

Finally at the other end of the spectrum, there would be countries whose systems are akin to a purei??. Countries which are in this category can be regarded as a 'pure' system. The laws have been reconstructed by the country such that it has its own distinct flavour. Its constituent elements can no longer be distinguished. Arguably, they are at fourth stage of development according to the Reid model.