Mixed 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 Law. 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 law.

Finally at the other end of the spectrum, there would be countries whose systems are akin to a pureé. 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.  

Indicators to aid in the classification

To determine which point on the spectrum is a country at, there are several indicators which may help in the categorization of each country. The first indicator would be the extent to which a lawyer in that country is required to know the law of both systems. In classically mixed jurisdictions such as Quebec, law students are trained as civilians but in areas of corporate, tax, criminal and administrative matters, they are trained in common law in both the nature of the law and its drafting. In fact, law schools in Quebec such as McGill, both the LLB (Bachelor of common law) and BCL (Bachelor of civil law) are taught concurrently from the first year of law school and that law graduates from McGill will complete their legal education with a thorough grounding in both legal traditions. Lawyers in mixed jurisdictions have no difficulty in adapting to both systems. On the other hand for lawyers in pure systems such as Singapore, lawyers are not necessarily required to be equipped with knowledge of 2 systems. Law schools only offer an LLB or a BCL degree. More often than not, knowledge of one system is sufficient for these lawyers.

Another useful indicator might be the entire judicial process of the country. In a civil law system, the role of the judges is akin to ‘mouthpieces of the law’. In a common law system however, a judge has a larger discretion and is able to make law. Therefore, by looking at the role of the judges in the system, it may an indicator which hints which direction the country is moving towards. For example, when judges use more discretion in applying the law in a civil law country, it may possibly mean that the country is moving towards that of a common law system and conceivably, a mixed jurisdiction. However, it should be borne in mind that one indicator per se does not provide a classification conclusively. The system has to be looked at in totality.

A country’s sensitivity to the origins of the doctrine might be another indicator of the level of ‘mixing’ in the country. In a country that can be categorized as a ‘pure’ system, they are generally insensitive to the origins of the doctrine transplanted since they no longer matter as the doctrine has been effectively reconstructed. An example would be how Singapore is generally insensitive towards the origins of the Indian Penal Code for it has already been seasonalised here. However in jurisdictions where it is classically mixed like a salad bowl, they are more sensitive to the origins of the constituent elements.

The indicators mentioned are by no means exhaustive. Ultimately, when determining whether a system is ‘mixed’ or ‘pure’, one has to look at the system in totality.

Mixed vs Pure systems

There is a whole spectrum of ‘mixedness’ due to the difference in treatment in laws by the country. There may be circumstances where the separate identity of the laws and its institutions are still palpable despite interaction between the two. This category of systems are the ‘mixed’ legal systems. However, there are jurisdictions where the constituent elements have became puree after interaction. The constituent elements are no longer distinguishable for each other and the legal system has its own distinct flavour. These would be the cases of ‘pure’ legal systems.  

Case study: Japan

Introduction

The legal system of Japan is largely civil, because the Japanese Civil Code is based on the German BGB.

Japan first came under the influence of the highly developed Chinese civilization at an early age, such that the earliest of the Japanese statutes are very like those of the Chinese Tang dynasty. After governmental power was placed in the hands of the Emperor after the Shogun was overthrown, the country started to enter into close links with foreign nations and started learning from the European model. Finally, in 1889, a new Constitution was introduced, modeled on that of Prussia, which made Japan into a constitutional monarchy. Eager to alter their law on the European model, the Japanese called upon drafters for the drafting of a Code and the Japanese Civil Code, which followed two drafts of the German BGB in important points of structure and content, came into effect in 1898. The organization of the courts and procedure in civil matters were also regulated by statutes on the German pattern.

Indications of becoming ‘mixed’  

The Common law influence was apparent in the infiltration into rules. First, American legal ideas and the American model underlay the new Japanese Constitution of 1946, and the reform of Criminal Procedure and the Code of Civil Procedure. Similarly, the enactment of a strong ‘antimonopoly law’, and a new company law and laws on the supervision of the stock market and the issuance of shares, are all based on American models. Further, Article 76(2) of the Japanese Constitution had the effect of abolishing continental-style administrative courts. The function of judicial review of administrative acts was then transferred to the regular law courts.

Oda states that:

 ‘Japanese law is part of the Romanogermanic family of law, with some elements of American law’.

This statement strengthens the view that influences of common law are slowly seeping into Japanese law. But ultimately, a wholesome approach should be taken and it is therefore important to next examine the Japanese legal system.

Indicator of lawyer’s knowledge

For civil law systems, law graduates are required to undergo a period of practical training, in which they must participate for designated periods in the work of the judiciary and of private practice, before they can be admitted to any legal career. This institution is most fully developed in Germany, where the law graduate has to spend two years in such a practical training program following his university legal education.

Similarly in Japan, completion of a two-year apprenticeship program in the Legal Training and Research Institute (LTRI) administered by the Supreme Court is a prerequisite for admission to practice as well as for appointment as either a career judge or procurator. Such a system is different from that of Bar Exams in the US sense of exams that immediately qualify passing candidates for admission to the Bar.

Indicator of judicial system

Interestingly, the judicial system of Japan is modeled after the United States court system. The appeal system is especially note-worthy. Firstly, for criminal cases, a jojoku appeal can be filed for an alleged conflict with a precedent of the Supreme Court, the Great Court of Judicature (Taishin-in). In this category, the Supreme Court of Japan has a discretion similar to that exercised by the Supreme Court of the United States in relation to a petition for the writ of certiorari.

In fact, this inclination towards judicial precedent was always part of a Japanese judge’s mindset. The idea of judicial precedent first arose in 1917, after two professors who had returned from England and America respectively, introduced the concept in various journals. Such an idea can be found in Court Law No. 59 of 1947 which states:

“In case the opinion (of a Petty Bench of the Supreme Court) is incompatible with a previous decision of the Supreme Court concerning the interpretation or application of the Constitution or other laws or ordinances, the Grand Bench shall render a decision, and the Petty Bench may not.”

Surprisingly, even prior to the reform of the court system in 1947, judges apparently felt themselves bound rather strictly by judicial precedents although the civil law doctrine of the sources of law prevailed. Another interesting area is that of a propounded argument that the official doctrine of the Supreme Court about judicial precedent is a variant of the civil law doctrine of sources of law rather than a Japanese adaption of the common law conception of judicial precedent.

Conclusion

Clearly, the legal education in Japan is still largely based on the civil model. In such an area, there may be no room for any idea of a ‘mixed’ system. However, the courts are receptive towards the common law conception of judicial precedent, but have still adhered to the civil law doctrine concerning the sources of law so that their concept of judicial precedent is unique in a sense that there has been a merger of the concept of judicial precedent with the civil law doctrine. The attitudes of the majority of scholars has, however, been to cling on to the civil law doctrine and to deny the need for predictability of judicial decisions.

Looking at the Japanese legal system on a whole, taking into account the infiltration of common law principles in its rules and its system, it seems as though Japan is moving towards becoming a salad bowl, where there are different legal treatments of the law. However, it is also fairly arguable for Japan to be considered as a puree instead, where the laws have been constructed to form one unique system of its own as in the case of the merger of the concept of judicial precedent with that of civil law which considers judicial precedents as one of the many sources of law.

Case study: South Korea

Introduction

The legal system of South Korea is also modeled after a civil law system, as evidenced by its Constitution.

Most of the aspects of South Korea’s legal system are similar to that of Japan because of the Japanese Occupation which ended in 1945. After the Korean War, the original Constitution of the Republic of Korea was introduced in 1948. This Constitution was further revised in 1987. South Korea’s subsequent history is marked by the ages of the First Republic, till the Sixth Republic. Following liberation from Japanese colonial rule in 1945, South Korea implemented a legal system very similar to the Japanese civil law system that had been in force during the colonial period. In 1987, an option to restore the power of constitutional review to the Supreme Court, gave rise to a resulting judiciary hierarchy which was similar to the Japanese court system. Such a power was actually present in the Third Republic, and at that time, the concept of such a court system was predominantly influenced by Continental European antecedents of the civil law tradition. Korean conceptions of the role of the judge have been influenced far more by German thinking.  

Clearly, the South Korean legal system is against the idea of common law concepts. Most of the sitting Judges of the Korean Supreme Court have let it known that they disfavoured the proposed expansion of their jurisdiction to include constitutional review. Merryman has propounded a view regarding this matter, which states:

“The tendency has been for the civil law judge to recoil from the responsibilities and opportunities of constitutional adjudication.”

Such a disinclination was attributed to skepticism about ‘judicial activism’, a phenomenon viewed by many Korean jurists as a distinctive and objectionable feature of the common law doctrine. Further, the Korean Constitutional Court as it was ultimately incorporated in the Sixth Republic Constitution can be traced back to the Verfassungsgerichtshof as recognized under the Austrian Federal Constitution of 1920. Through the intermediation of Japanese commentaries, Korean jurists have long been familiar with German Constitutional history.

The Constitutional Court’s jurisdiction is mandatory like that of the German Constitutional Court and not discretionary like the certiorari jurisdiction of the United States Supreme Court. Also, the petition jurisdiction in South Korea follows a German model, corresponding to the mechanism of Verfassungsgerichtshof.

Indicator of lawyer’s knowledge

The compulsory modules that law students must read are Civil Law, Constitutional Law, Criminal Law, Civil Procedure, Criminal Procedure, Corporate Law, Administrative Law, and Contract Law. There does not seem to be any signs of necessary understanding of common law systems.

Similarly, in South Korea, candidates who pass the judicial exam are required to undertake the professional training program that is provided by the JRTI before they can be admitted to the bar.

Also, in the past, a limited number of Korean graduate law students and legal professionals were able to broaden their educational horizons by pursuing advanced legal studies abroad. Typically, in the early years of the Republic, most of the Korean legal scholars went to West Germany or Japan for post-graduate legal studies, but in the last 40 years many have chosen to go to the United States. This trend is a reflection of the historical influences on Korea's legal system.

The American influence on domestic law, combined with the strong U.S. influence on international trade laws, has been both a product of and an impetus for the increase in Asian legal scholars studying in the United States. The South Korean government, recognizing the importance of American legal concepts in the formation and administration of domestic and international law and legal institutions, sponsors one or two-year expense-paid sabbaticals for study abroad for government officials, judges and prosecutors, and competition to study at prestigious American law schools is severe. Many law firms also offer their associates the opportunity to study for one or two years in the U.S., followed by the practical training at an American law firm. In both cases, the students usually acquire an LL.M. degree from an American law school, and some pass one of the state bar exams, adding the prestige of an American law degree and membership in an American state bar to an already rewarding educational and professional experience.

Notably, the most recent proposal by the presidential commission charged with formulating a comprehensive reform plan for graduate and professional education bears a striking resemblance to the American three-year graduate law school system. In fact, such a proposal has arose in the Kim Young-Sam Administration (1993-1998), the Kim Dae-Jung Administration (1998-2003) and the Roh Moo-Hyun Administration. However, the stance of the Supreme Court is clear – that it opposes to such a proposal to reform the education of the legal profession because of the extension of years required for study and the possibility of a historical revolution for the Korean legal profession.

Indicator of judicial system

The development of the judiciary as an independent entity was stunted by the military dictatorships that governed Korea until the early 1990s. Judges served at the pleasure of the President, and judicial independence existed in name only.

Although it is not written law, in practice the decisions of the Supreme Court of South Korea have strong precedent value. This seems to tie in with the common law doctrine of judicial precedent. However, we should also consider the possibility of a unique merger of the common law doctrine with the civil law perspective as in the case of Japan. Further, there has been a superimposition of common law institutions such as habeas corpus on the legal order.

Conclusion

Concluding, the legal system of South Korea seems to resemble that of a salad bowl, where the common law and civil law concepts are interacting. However, the importance of judicial precedent only happens in practice. Perhaps, the South Korean legal system is moving towards that of a salad bowl, but now, it’s still too early to tell. It is also arguable that the pursuing of graduate studies in US now only reflects an attitude to recognize the presence of common law principles, but does nothing to indicate a general receptiveness of common law principles. Afterall, most law students who eventually leave for graduate studies become law professors, and this definitely does not include the practitioners.

Case study: The Philippines

Introduction

The mix in Philippines’ legal system reflects the different communities of the country:

1. the Westernised Christian majority,
2. the Muslims,
3. the indigenous mountain tribes
4. the underground groups comprising of the Moro Islamic Liberation Front and the National Democratic Front.

Summarily, Fortunato Gupit, Jr once put forth the following statement which essentially captures the state of law in the Philippines:

“The Philippine legal system, is a peculiar mixture of civil law, common law, indigenous customary law and contemporary law designed to meet current conditions, with a separate and distinct Muslim legal system operating for the Muslim minority.”

The main focus of this section is with regards to the mainstream law in Philippines, which is generally a mix of the civil and common law traditions. The issue in question is whether these civil and common law families do interact and function together to form a mixed legal system in Philippines, as opposed to merely co-existing separately. In addition, one should also note that there exists a sub stream law which functions as an ‘under current’ together with the mainstream law. This sub stream law consists of canon law, the indigenous peoples’ culture communities as well as the Bangsamoro people who are Muslims.

Infiltration of common law principles in Philippines

With a revised Penal Code and a new Civil Code, the above timeline diagram shows the start of an infiltration of common law principles in the Philippines ever since the American Occupation and after the Spanish ended their colonial rule.

Increasingly in recent years, there has been a continued and greater extent of such an infiltration. This phenomenon can be attributed to several unsurprising causes. Firstly, upon the transfer of power from the Spanish to the Americans, there was a substitution of the Spanish political law by the American political law. Secondly, not only does the Philippine legislature look to the Americans for guidance in the enactment of statutes, the Supreme Court in Philippines is also gradually making use of American precedents in judicial interpretation. Lastly, Philippines law schools are beginning to design their curriculum according to the American law schools. For illustration purposes, the standard route to practising law in the Philippines is to undergo a four-year undergraduate programme followed by another four years of graduate law school. As observed, there is in fact a sure and gradual interaction between these two families of law in the Philippines legal system.

Civil and common law features in the system

The private and substantive law in Philippines is largely civil in nature as the Philippines legal system undeniably originated from the Spanish. The common law nature is more significant in public law, as well as a few areas of substantive law such as commercial law and taxation. There is also significant reliance on American case law in judicial interpretation in the Philippines judicial process. Although the doctrine of stare decisis is still unsettled, case law is increasingly being used as evidence, although it is not the law itself.

Conclusion and evaluation of the Philippines system

The above table depicts our approach to studying the Philippines legal system and in determining if it can be classified as a mixed legal system. For it to be so categorized, there must be an interaction between the 2 families of law in both the rules and the system as a whole. We first see a mixture and interaction of the civil and common law in the substantive law of the Philippines legal system. Next, we observe that the actors (lawyers and judges), the institutions (law schools and courts) as well as the judicial process have increasingly adopted American characteristics as already discussed and illustrated above. Consequently, it can be observed that the civil and common law function and interact with each other, as opposed to merely co-existing in a parallel manner.

Therefore, Philippines is clearly a mixed system, also known as a ‘salad bowl’. It cannot be a ‘puree’ because the main components of the legal system are still clearly identifiable. The two families of law do not merely co-exist in a pluralistic manner; the touchstone is that they function and interact as a whole.

Mixed legal systems: Summing up

The diagram below summarises the various themes and concepts of Comparative Law that we have covered under this discussion on Mixed Legal Systems as well as captures the meaning and usefulness behind the study of this topic. Finally, we conclude that there is in fact no formal definition of a mixed system. One must look at the totality of the circumstances –no definition can encompass all the factors that should be taken into account when determining if a legal system is mixed. Further, it is unlikely, at least in the near future, for all systems to tend towards pure ones or for all to tend towards mixed ones because different systems are at different points on the sliding scale right now. There will always be both pure and mixed systems in existence.

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