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The common law tradition is unique in England, the United States and the former British colonies. While there are differences between common law systems (e.g., whether the judiciary can declare legislative acts unconstitutional and how often juries can be appointed), they all recognize the use of precedents, and none of them rely solely on the comprehensive codes of law that prevail in civil justice systems. The countries of both categories are mainly located on the trade routes of Europeans in the 17th and 18th centuries. 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] Take, for example, the states of Texas, California and Louisiana in the United States. Texas and California have “some” civil law in their jurisdictions, while in Louisiana, the amount of civil law is “more.” [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. [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.” However, hybrid systems do not form a homogeneous group that provides uniform answers to certain 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] Customary law systems are becoming increasingly rare. A common system is used by a monarchy and grants certain legal powers to kings, queens, sultans or tribal chiefs as heads of state. One of the challenges of a regular system is that the ruler is seen as “above the law” because the laws do not apply equally to the ruler and subjects. There are only a handful of monarchies left in the world, and most of them have evolved into hybrid jurisdictions or adopted a different type of legal system. [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.

This article aims to explain why, in my view, mixed legal systems are not at a transitional stage of civil or customary law and will not end up as one of the two “classic” legal paths. Rather, they will expand their borrowing and transplantation efforts and strive to achieve the “perfect rule” among the available rules of existing civil law, just as all common law systems do when they fail to find a flashy and creative new solution in a particular area. This gives them great potential as models when legal harmonisation and unification are on the agenda or when the two classic Eurocentric legal families stagnate and need inspiration. 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. The traditional concept of “hybrid legal system” is one in which more than one legal system coexists. In other words, if a legal system is called a “hybrid legal system,” it would have both a common law system and a civil law system, or a socialist legal system, a customary law system, or a religious system. Civil law systems are used throughout Europe, Central and South America, Asia and Africa. France, Germany, Holland, Spain and Portugal had colonies outside Europe, and many of these colonies adopted the legal practices imposed by colonial rule. The genesis of the “hybrid legal system” rests on a culture`s claim to preserve its own language, religion, historical experience and, last but not least, laws and customs. This approach is aimed at preserving the national legal system, with the political superior playing an important role.

We can consider the costs and benefits of this approach. The main characteristics of a “hybrid legal system” are: (a) the coexistence of more than one legal system; (b) the relationship between the combination of different legal systems cannot be determined in advance; and (c) it preserves the domestic legal system 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 legal system in the United States derives from the English common law tradition and the American Constitution. English common law is a system that gives the force of law to written judicial decisions. As a result, the U.S. legal system recognizes the ability of an appellate court to interpret the law through case law and apply it to future litigants. A precedent is a judicial opinion that is considered a legal authority for future cases involving the same or similar legal issues. The advantage of this system is consistency and dispute resolution without the parties having to take legal matters to court. The common law legal system is adversarial.

This means that the parties take their cases to court for resolution. The judge or jury hears the evidence and arguments of the parties before making a final decision. It is the responsibility of the parties to investigate the facts, plead the law and present their best arguments. Judges and juries do not conduct independent inquiries and are not charged with assisting parties in litigating their case. It is the responsibility of one party to resolve all legal issues. A famous example of how precedents work is Brown v. Topeka School Board. In that landmark 1954 case, judges ruled unanimously that racial segregation of children in public schools was unconstitutional. Braun v. Board of Education is one of the cornerstones of the civil rights movement and helped set a precedent that “separate but equal” education and other services were in fact not at all the same. The case required all racially segregated public schools to integrate, not just in Topeka, Kansas. In addition, Brown has been cited as a precedent in thousands of racial equality cases nationwide.

A third category includes countries that experienced relatively late trade and industrial development and therefore derived much of their legal contribution from other systems because they appeared to be more sophisticated.[20] Greece, Japan and Turkey are representatives of this category. If you look closely at India, you will find that we mainly follow the common law because we have the system of precedent and public order. But is it not also a fact that we have several commissions of inquiry, administrative tribunals (characteristics of civil law), customary law, personal law of Hindus, Muslims, Jews, Parsis and socialist law in the guiding principles of state policy in our constitution? Civil law systems were developed in Europe and are based on Roman and Napoleonic law.