Mixed Legal System Adalah

  • Post author:
  • Post category:Uncategorized

[10] According to a widely held view, represented by Kenneth G. C. Reid in his article “The Idea of Mixed Legal Systems” (2003) 78 (1&2) Tulane Law Review 21 ff., a truly mixed legal system in the narrow sense requires a mix at (at least) three levels: When distinguishing between the substantive rules of the system and the methodology, The substantive rules appear to be predominated by civil law, while the methodology comes primarily from the common law. Public law rules are derived from the common law tradition, while private law is characterized by civil law influences. To go into more detail, property law is civil in all mixed jurisdictions, commercial law, unjust enrichment law and tort law are based on common law, while contract law is a truly mixed branch. Another important factor is that the civil law models that can be observed in a mixed legal system are of different ages because they have not evolved, but have lost touch with contemporary civil law as the common law has gained prominence. [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.” [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.” [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. The latter objective becomes particularly relevant in the context of this article. 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] 3 Why mixed legal systems could merge into pure civil law or common law systems Countries in both categories are mainly located on the trade routes of 17th and 18th century 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] The term “mixed” that we have chosen rather than 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. However, there is a significant difference of opinion on the actual meaning and components of a mixed system.

Scholars of the “mixed jurisdiction” tradition, following in the footsteps of early British comparatists (see section 17.2 below), tend to limit their scope to a single type of hybrid where the most comprehensive research has been conducted – the common law and civil law mixtures. In this perspective, the number of mixed systems in the field is reduced to less than twenty worldwide. However, many researchers under the influence of legal pluralism (including the comparatists who conducted the Ottawa study mentioned above) use a more comprehensive factual definition that broadens the scope and knows no obvious limitations. [34] The United States is the most striking example of a nation heavily frequented by young lawyers from other jurisdictions. In England, contrary to this general trend, Cambridge Law School has ceased to teach Scottish law, as noted by Tony Weir in his 1998 article “Divergent legal systems in a single member state” in the Zeitschrift für Europäisches Privatrecht at page 572. 5 Potential of mixed legal systems as creative sources of their own types of rules [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. Another general factor in the process of creating a hybrid system is characterized by the fact that law students[33] and academics go abroad and return with ideas and influences from another legal system in their baggage, then continue their legal profession and, of course, also use these influences.[34] South Africa, for example, derived much of its continental influences from Germany through the Alexander von Humboldt Foundation,[35] while during apartheid there was also a strong “trade” of jurists between South Africa and the Netherlands.

[29] The view expressed in this article is that of Alan Watson, who views legal borrowing and transplantation not only as a phenomenon that is occurring, but as the main source of change in the Western legal tradition. Pierre Legrand disagrees when he refutes the idea of legal transplants. According to him, they do not exist because each legal norm needs its specific historical-cultural context to live, and without it, it is meaningless and therefore useless for a comparative jurist to examine them. But this opinion draws too harsh a consequence, which is not followed, because it does not clarify why certain minor changes of meaning by transplantation into a new legal environment must necessarily have the radical consequence that only a “network of words” remains. [21] Although Scotland is not alone: the Channel Islands also have a mixed system, according to Reid in his newspaper article “The Idea of Mixed Legal Systems” in Tulane Law Review 78 (1&2) of 2003, although it is far from trade routes and does not fit properly into the model of economic “laggards”. [7] Palmer “Introduction to the Mixed Jurisdictions,” Mixed Jurisdictions worldwide: The third legal Family, Palmer (ed) 2001 3-15. [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. 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. 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.