Mixed Law System

5 Potential of mixed courts as creative sources of their own type of rules Nevertheless, hybrid systems do not form a homogeneous group that provides uniform answers to specific 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] [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 www.droitCivil.uottawa.ca/world-legal-systems/eng-monde.html. 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. 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. Common law and equity are legal systems whose sources are the decisions of judges in cases. In addition, each system will have a legislature that adopts new laws and statutes.

The relationship between laws and court decisions can be complex. In some jurisdictions, these laws may override judicial decisions or codify the subject matter covered by several contradictory or ambiguous decisions. In some jurisdictions, judicial decisions may decide whether the constitution of the court permits the enactment of a particular law or provision of law, or what meaning is contained in the statutory provisions. Common law developed in England, influenced by Anglo-Saxon law and, to a much lesser extent, by the Norman conquest of England, which introduced legal concepts from Norman law, which in turn has its origins in Salic law. The common law was later inherited by the Commonwealth of Nations, and almost all former colonies of the British Empire adopted it (Malta is an exception). The doctrine of stare decisis, also known as jurisdiction or precedent of the courts, is the main difference with codified civil law 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 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] 3 Why mixed legal systems could merge into pure civil law or common law systems The term „mixed“, which we have preferred to other terms such as „hybrid“ or „composite“, should not be interpreted restrictively, as some authors have done. This category therefore includes political entities in which two or more systems apply cumulatively or interactively, but also entities in which the systems are juxtaposed due to more or less clearly defined fields of application. Scotland is a country that has neither a colonial past nor an economic „late bloomer“, but which has nevertheless developed into a mixed system[21]. Until the early nineteenth century, Scottish private law resembled that of an uncodified civil system.[22] From then on, it was developed by lawyers and courts in a more casuistic direction, following English law and precedents,[23] which, also due to the political union with England, penetrated over time the civil foundations, thus following the general trend of European civil law, with the fact that it never completely abandoned civil influence.[24] Whether Scots law is therefore the result of a conscious choice of the „best rule“[25] or rather represents the Scottish history of foreign influence[26] and, to some extent, control[27] is controversial. The Islamic legal system, consisting of Sharia (Islamic law) and fiqh (Islamic jurisprudence), is the most widespread religious legal system and, along with common law and civil law, one of the three most common legal systems in the world. [22] It is based both on divine law derived from the hadith of the Qur`an and Sunnah, and on the decisions of ulema (jurists), who use the methods of ijma (consensus), qiyas (analogous deduction), ijtihad (research) and urf (common practice) to derive fatwā (legal advice). An ulema had to qualify for an ijazah (Doctor of Laws) in a madrasa (law school or college) before he could issue a fatwah. [23] During the Islamic Golden Age, classical Islamic law may have influenced the development of common law[6] and several civil law institutions. [24] Sharia law governs a number of Islamic countries, including Saudi Arabia and Iran, although most countries use Sharia law only as a complement to national legislation.

It can concern all aspects of civil law, including property rights, contracts and public law. Here is a complete list of countries that base their legal systems on codified civil law: 4 Why mixed legal systems could remain mixed and not merge into pure common law (or civil law) systems 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].