Comparative Law and the Study of Mixed Legal Systems

2019 ◽  
pp. 473-501
Author(s):  
Jacques Du Plessis
Keyword(s):  
Legal System ◽  
Legal Pluralism ◽  
Comparative Law ◽  
Legal Systems ◽  
Comparative Analyses ◽  
The World ◽  
Mixed Nature ◽  
Key Questions

Legal systems generally are ‘mixed’ in the sense that they have been influenced by a variety of other systems. However, while some legal systems, for a period of time at least, reach a certain level of uniformity, the diversity or ‘mixedness’ of the origins of other systems is more pronounced. This chapter deals with the experiences of the latter systems, and especially with their relevance to the discipline of comparative law. The focus is first on the concept of a mixed legal system, as well as related concepts, such as legal pluralism and hybridity, that have gained prominence in comparative analyses. Thereafter key questions that arise from these analyses are then considered in detail. These questions include how the mixed nature of legal systems is to be dealt with in representations of legal diversity of the world, how mixed legal systems are formed, and what could be learned from their experiences.

scholarly journals Transplante jurídico = Legal trasplant

2019 ◽  
pp. 262
Author(s):  
Christian J. Backenköhler Casajús
Keyword(s):  
Legal System ◽  
Legal Pluralism ◽  
Comparative Law ◽  
Cultural Pluralism ◽  
Legal Systems ◽  
Legal Transplant ◽  
Long Time ◽  
Over Time

Resumen: El trasplante jurídico es una metáfora del derecho comparado creada para señalar el traspaso normativo que se produce entre diferentes ordenamientos jurídicos. En un primer momento, el trasplante jurídico sirvió para demostrar que, desde hace tiempo, el traspaso normativo fue un mecanismo frecuentemente utilizado para crear nuevos sistemas jurídicos o para la adaptación o renovación de muchos de ellos. Pero, con el tiempo, se ha ido configurando como un concepto que, aparte de describir el traslado de una norma de un sistema jurídico a otro, trata también de explicar las posibles consecuencias que puede sufrir el ordenamiento jurídico receptor. En la actualidad, el trasplante jurídico está sirviendo para explicar la transferencia normativa entre diferentes ordenamientos jurídicos en el contexto de la globalización y también como indicador de la existencia de un pluralismo jurídico en el espacio jurídico actual.Palabras clave: Trasplante jurídico, pluralismo jurídico, derecho comparado, préstamo jurídico, pluralismo cultural.Abstract: The legal transplant is a comparative law metaphor created to indicate the normative transfer that occurs between different legal systems. At first, the legal transplant served to demonstrate that, for a long time, the normative transfer was a mechanism frequently used to create new legal systems or, also, for the adaptation or renewal of many of them. Over time, however, it has developed into a concept which, apart from describing the transfer of a rule from one legal system to another, also seeks to explain the possible consequences that the receiving legal system may suffer. At present, legal transplant is serving to explain the normative transfer between different legal systems in the context of globalization and, also, as an indicator of the existence of legal pluralism in the current legal space.Keywords: Legal trasplant, legal pluralism, comparative law, legal borrowing, cultural pluralism.

CRIMINAL PROCEDURE IN CONTEMPORARY CHINA: SOCIALIST, CIVILIAN OR TRADITIONAL?

2010 ◽  
Vol 59 (4) ◽  
pp. 1099-1127 ◽  
Author(s):  
Bo Yin ◽  
Peter Duff
Keyword(s):  
Comparative Study ◽  
Legal System ◽  
Natural Science ◽  
Criminal Procedure ◽  
Comparative Law ◽  
Legal Systems ◽  
Legal Analysis ◽  
Methodological Tool ◽  
The Comparative Study ◽  
Analytical Device

Taxonomy, as a methodological tool introduced from natural science, brought the categorization of legal systems to comparative law.1The term ‘legal family’2is normally used as a metaphor, because it recognizes that within each grouping there are many variations. Each of the legal families is regarded as a combination of fundamental features of legal systems which have certain similarities. As an analytical device, taxonomy renders the comparison of different laws and legal institutions manageable by means of simplifying or abstracting the diverse and complicated realities of a myriad of legal systems. As a result, the concept of legal families acts as a support for legal borrowing and transplantation, as well as comprising an inevitable part of most comparative law works. Even where as few as two jurisdictions are involved, the categorization of legal families is still a useful tool for most comparative legal analysis. Assisted by the notion of legal families, comparativists can readily understand and explore an unfamiliar legal system.3Normally, such scholars tend to accept the conventional or widely accepted categorization of a particular legal system as belonging to a certain legal family. However, without detailed scrutiny of the first-hand material, distortions may arise as a result of preconceptions held at the beginning of the comparative study.4

scholarly journals Scots law: a system in search of a family?

2020 ◽  
Vol 61 (4) ◽  
pp. 311-327
Author(s):  
Sue Farran
Keyword(s):  
South Africa ◽  
Legal System ◽  
Historical Background ◽  
Normative Values ◽  
Political Society ◽  
Legal Systems ◽  
Global Community ◽  
Starting Point ◽  
The World ◽  
Typical Mode

The concept of legal families is familiar to most comparativists and although miscegenation is an increasingly common feature in a global community, arguably an understanding of family origins may help to anticipate differences of approach, ideology, attitudes to law and diverging normative values. Classification into families, despite various criticisms and disagreements as to which families there are or how they should be distinguished, provides a useful tool for the comparativists and those seeking, reform, unification or harmonisation.The Scottish legal system, however, is one that tends to elude classification. Even where “mixed” or “hybrid” legal systems are recognised, that of Scotland may be omitted or distinguished from those of, for example, Greece, South Africa, Israel or the Seychelles.This begs the question, what is a legal system and how is it distinguished? This paper examines the Scottish legal system, taking as its starting point a focus on juristic style as the key distinguishing feature of a legal system and looking at the key elements that eminent comparativists Zweigert and Kötz suggest shape this. These are: the historical background and development; its typical mode of thought; its distinctive institutions; the types of legal sources it acknowledges; and its ideology. Looking particularly at the academic debates that have arisen in Scotland concerning the nature and identity of Scots law, the paper goes on toconsider whether the claim to a distinct legal system is anything more than a manifestation of the fact that “each political society in the world has its own law”,1 and that in fact the time has come to abandon the notion of families.

scholarly journals A COMPARISON OF THE COMMON LAW BASED DUTY WITH ITS CIVIL LAW EQUIVALENT

2020 ◽  
Author(s):  
Azamat Omarov ◽  
Asylbek Kultasov ◽  
Kanat Abdilov
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Comparative Law ◽  
Case Law ◽  
Legal Systems ◽  
Legal Structure ◽  
Legal Term ◽  
Legal Effect ◽  
The World ◽  
The Common

The article discusses the features of civil law in different countries. The authors studied the origins of the modern tradition of civil law, comparing the legal systems of two European countries. One of the traditional classifications of duties in civil law is analyzed, the conclusion is made about the inappropriateness of the allocation of personal and universal duties. In comparative law, there are many situations where the same legal term has different meanings, or where different legal terms have same legal effect. This confusion most often occurs when civil lawyers have to deal with common law, or vice versa, when common law lawyers deal with civil law issues. While there are many issues which are dealt with in the same way by the civil law and common law systems, there remain also significant differences between these two legal systems related to legal structure, classification, fundamental concepts, terminology, etc. As lawyers know, legal systems in countries around the world generally fall into one of two main categories: common law systems and civil law systems. There are roughly 150 countries that have what can be described as primarily civil law systems, whereas there are about 80 common law countries. The main difference between the two systems is that in common law countries, case law – in the form of published judicial opinions – is of primary importance, whereas in civil law systems, codified statutes predominate.

scholarly journals The Legal Pluralism in Law Education in Indonesia

2021 ◽  
Vol 4 (1) ◽  
pp. 1-5
Author(s):  
Rahmat Bin Mohamad ◽  
I Wayan Rideng
Keyword(s):  
Law Enforcement ◽  
Legal System ◽  
Social Issues ◽  
Legal Pluralism ◽  
Legal Culture ◽  
Legal Systems ◽  
Legal Compliance ◽  
Normative Study ◽  
History Of ◽  
The Many

This paper aims to analyze the practice of legal pluralism in Indonesia. A decentralized approach policy enables the growth and the development of various legal systems. By the prevailing of the pluralism of legal system apparently also raises the problem in its application. But in reality, various living legal systems can co-exist. The method applied is based on normative study, with qualitative approach. The result shows that the legal system that pluralism is very influential on the development of education, including law education. Law education in Indonesia is also influenced by the history of Indonesia. The new pattern of law education in Indonesia can only lead people to an obedience and legal compliance. Legal education is not an independent thing, but it is related to social issues. So it has implications for the many violations of law and the emergence of criminal acts. This shows the level of legal awareness of the community is still low. Then it will also affect the legal culture and law enforcement in a country.  

Mixed and Mixing Systems Worldwide

2014 ◽  
Vol 1 (1) ◽  
pp. 5-9
Author(s):  
Seán Patrick Donlan
Keyword(s):  
Comparative Law ◽  
World Society ◽  
International Congress ◽  
Legal Systems ◽  
The Third ◽  
The World ◽  
Hebrew University

This article introduces an online collection of pieces on mixed legal systems in the European Journal of Comparative Law and Governance. The articles are derived from the Third International Congress of the World Society of Mixed Jurisdiction Jurists held at the Hebrew University of Jerusalem in the summer of 2011.

Meeting the Needs of Comparative and International Legal Research in Australia: A Library Project—A Report and Proposal*

1992 ◽  
Vol 20 (3) ◽  
pp. 238-264
Author(s):  
Gerard C. Rowe ◽  
Rob Brian
Keyword(s):  
Legal System ◽  
Common Law ◽  
Comparative Law ◽  
Legal Systems ◽  
Legal Research ◽  
Consumer Law ◽  
Rules And Principles ◽  
Potential Benefits ◽  
Foreign Commerce ◽  
International Interactions

Common Law systems have always practiced a fairly consistent comparative legal research and scholarship. Initially through the mere exportation of rules and principles from England this was a somewhat centripetal comparative law but it has passed through various modes of radial, circumferential, centrifugal and ultimately polycentric comparisons and cross-fertilizations. Nevertheless, this exercise in comparative law, also in Australia, has remained largely within the boundaries of the Common Law world. It is no longer possible for legal research to be conducted wholly within the boundaries of a single legal system, even that of the enlarged Common Law. Legal researchers need to look beyond the borders of their own jurisdictions. Hardly any legal system today is capable of operating without international interactions requiring a knowledge of foreign legal systems, and many legal problems, or socio-economic problems which law must help to solve, may find useful models elsewhere. In Australia there are needs for reform in fields such as intellectual property, banking or consumer law, and for providing qualified advice including predictions of developments in foreign legal systems to ensure that foreign commerce and trade is fully informed of potential benefits and disadvantages to be found under foreign law. Australia must also be able to take its proper place in fields such as international environmental protection, and to take advantage of potentially beneficial developments in dispute resolution techniques. All of these situations are ones in which, by looking outside their national and even Common Law framework, Australian legal researchers will be better placed to provide concrete benefits to Australian society.

ACCOMMODATING RELIGIOUS LAW WITH A CIVIL LEGAL SYSTEM: LESSONS FROM THE JEWISH LAW EXPERIENCE IN FINANCIAL FAMILY MATTERS

2018 ◽  
Vol 33 (03) ◽  
pp. 481-503
Author(s):  
Avishalom Westreich
Keyword(s):  
Legal System ◽  
Family Law ◽  
Civil Law ◽  
Legal Pluralism ◽  
Jewish Law ◽  
Legal Systems ◽  
Religious Law

AbstractThe discussion of legal pluralism focuses on the coexistence of several legal systems, mainly religious and civil ones. But what happens when a process of assimilation—whether imposed or voluntary—characterizes the relationships between the systems? This article analyzes the fascinating process of assimilation of civil principles into religious law in the context of Jewish law and Israeli civil family law. Assimilation, as the article shows, is not the whole picture. The article reveals a corresponding (both open and implicit) struggle for the preservation of religious law principles despite the continuing efforts of civil law for their curtailment, or sometimes, elimination. The result, which is somewhat internally contradictory, suggests a normative pluralistic framework that enables both regimes—the civil and the religious—to preserve their core principles in family law matters.

Criteria for the Classification of Legal Systems

2021 ◽  
pp. 72-77
Author(s):  
A. O. Zernov ◽  
E. V. Voskresenskaya ◽  
N. N. Zhil’skiy
Keyword(s):  
Political System ◽  
Comparative Law ◽  
Point Of View ◽  
Special Consideration ◽  
Legal Systems ◽  
The World

The article considers the necessity and importance of the issue concerning the classification of legal systems, which is caused by the following. The idea of classification of legal systems arose in comparative law at the beginning of the XX century in connection with the increase in national legal systems; with the destruction of the colonial system, the legal systems of the liberated countries arose and developed; and at the end of the XX century, this trend continues with the destruction of the socialist political system, which entails the appearance of new legal systems on the legal map of the world. It is also necessary not only to study it from the point of view of the special, consideration of individual parts that incorporate similar legal systems, but also to solve the problem in practice-the unification of current legislation and the improvement of national legal systems.

Przeszczepy prawne jako instrument hybrydyzacji prawa

2014 ◽  
pp. 5-27
Author(s):  
Celina Nowak
Keyword(s):  
Comparative Law ◽  
Legal Systems ◽  
The World ◽  
Legal Transplantation

The notion and theories on legal transplants and – more broadly – legal transplantation have been an object of interest in comparative law in the world since the 70s., especially in the framework of research on mixed legal systems. The theories of legal transplants remain rather unknown to the Polish researchers. And yet they may constitute a useful tool of analysis of contemporary transformations of legal systems, stemming from globalization. The article is aimed at acquainting Polish readers with theories on mixed legal systems and legal transplants and explaining briefly in what way legal transplants contribute to the hybridization of legal systems in the world.

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