“As Slippery as an Eel”? Comparative Law and Polyjural Systems

Chapter 1
“As Slippery as an Eel”? Comparative Law and Polyjural Systems


Biagio Andò


This chapter’s focus is on polyjural systems—that is, systems that are built on several different legal traditions whose contribution to the recipient legal system is individually discernible—and on the gauntlets such systems throw down to those comparative law scholars who try to understand how they work in practice.1


In this chapter, I will use some general concepts that recur in comparative analysis of legal systems (such as the concept of legal tradition or legal culture). Because of their wide use and consequent high degree of vagueness, I will explain briefly, for the ease of the reader, the way in which the key concepts will be used throughout this chapter.2


The expression legal system will be used when the aim is to emphasize the importance of formal written provisions. Legal tradition,3 which will be discussed in more detail later in the chapter, highlights conceptual units that are wider or narrower than national legal systems. Legal culture4 refers to the style of thought and the patterns of reasoning within and about the law pursued by jurists of the recipient system5 and thus affecting the reconstruction of the set of meanings of written rules (Cotterell 2006).


This topic not only implies a profound awareness of some comparative law key concepts, but also deals with some complex issues relevant at the level of comparative law methodology. The links between these latter and the field of inquiry are two-way: on the one hand, a grasp of the general issues, such as admissibility of legal transplants and patterns of development of European private law, is necessary to deal with this theme; on the other hand, the specific topic discussed in these pages provides a deeper comprehension of those general issues.


As to the first aspect, the theme of polyjural systems may give an insight into the patterns through which legal transplants may occur.6 Polyjurality is the effect of the interaction or mutual influence of autochthonous law and foreign law in a sociolegal context that is other than the one the foreign law comes from. It is a consequence of a massive reception of foreign law occurring in two alternative ways: either through spontaneous reception or through imposition by a colonial power.


Spontaneous reception is the by-product of several factors, such as the role that is played by the autochthonous legal culture during the reception of these materials and which lies behind that change.7 Studying how this reception occurred may help us understand whether the reception of legal materials may be deemed a response to societal needs, so that a symmetrical relationship between law and society may be depicted (as so-called mirror theories suggest),8 or whether law evolves in a rather independent and dysfunctional way,9 as the result of the initiative of minorities or elites.10


Arguably the mind-set of jurists has a primary role in polyjural systems, greatly affecting the ways in which rules coming from different traditions were combined and accommodated within the same system.11 Therefore, to seize the ways in which the legal culture produced the set of meanings necessary to assimilate the legal foreign materials and to enable them to be enforced,12 one must pay attention to the sociolegal context in which rules are bound to work.13


From a more specifically European viewpoint, the study of polyjural systems may be assessed—and some years ago a scholar attempted to make such an assessment (Smits 2001; 2002; see also Kötz 2003)—as a useful paradigm to understand how the development of a common European private law may occur despite the clear and huge differences existing among national legal systems.


In the following pages, I will not attempt to propose either a new approach or new definitions. My aim is more modest. I will try to frame the topic, moving from the methods and definitions suggested by some scholars whose approach to the subject seems to me particularly significant. I will try to highlight their conceptual and theoretical apparatus (and also their practical goals). The definition of mixed systems or mixed jurisdictions is widely used by those involved in the study of these complex entities.14 I will attempt to clarify this term for those making recourse to it.


Two Significant Attempts to Explain the Phenomenon of Polyjural Systems: The Approaches of Palmer and Örücü


Terms currently used in comparative law scholarship (such as mixed jurisdictions) are the by-product of theorizing efforts; they are not part of the language of a given lawmaker. There is no uniform approach to mixed jurisdictions, nor is there a common methodology to identify the main characteristics of such jurisdictions. I will therefore deal with two specific approaches, those by Palmer and Örücü, and I will do so in two stages. First, I will sketch a neutral (insofar as it is possible) description of the two approaches, and then I will attempt a critical appraisal.


Regarding the first point, some implicit premises are common to both Palmer and Örücü:


1. Both authors believe that mixed systems cannot be considered as exceptions or anomalies today. They are no longer considered isolated entities.15


2. Both authors feel the need for a classificatory grid, and thus they restrain the scope of their survey (even if they do so in different ways).


3. Both approaches agree that, to avoid a superficial comprehension of those jurisdictions, a survey cannot be bound to the analysis of legal rules. Law has to be put in context. Both Örücü and Palmer (though in different ways) call for the need to go beyond formal law.


However, there are also some important differences in their approaches:


• The object of their analysis is different. Whereas in Palmer’s work the key concept is jurisdiction, in Örücü’s work it is “system” (a notion that is used in some examples with a meaning different from that of state legal order).


• Palmer’s approach is much more specific than Örücü’s. It focuses on those entities dominated by polyjurality, especially jurisdictions that rest on civil and common law foundations.


To better explain the differences between these two approaches, I will consider them in turn.


The Cultural Roots and the Corollaries of Palmer’s Approach


Palmer’s approach is at the same time traditional and new.16 It is traditional because Palmer’s reasoning is grounded on the concept of legal families,17 a deeply rooted idea in comparative legal systemology.18 However, here the concept of legal family is used to group legal systems that are dissimilar from those usually considered in that they show peculiar traits and do not exhibit the unity and coherence of “pure” jurisdictions that form traditional legal families.


Legal systems were usually conceived as coherent orders with distinct, clear-cut constitutive elements.19 Systems showing features that made them hybrid20 were not considered influential experiences, because they did not disclose common patterns or resemblances among themselves.21 This anomaly condemned them to what has been aptly defined by Du Plessis (2006: 480) as a “classificatory limbo.”


Today the position assessing polyjural systems as entities in isolation has to be considered a relic of the past.22 Scholars living in these jurisdictions have recently started an enhanced dialogue to encourage mutual intelligibility between their systems. These systems are now considered to be a relevant ground for a comparative law survey. A change in perspective has occurred.


This change was fostered by the pioneering inquiries of Walton (1899), Lee (1915), and Amos (1937). These studies shed light on systems that could not be classified under either the civil law or the common law label because their ingredients did not fit well into either. Walton (1899) remarked that some systems—such as Quebec, Louisiana, and Scotland—were a kind of hybrid occupying a position midway between common law and civil law, because they had features that were amenable to both.


Lee’s (1915) contribution was twofold. On the one hand, on the ground of terminology, he coined the word mixed to define those systems whose peculiar features made them not suitable to fit into the traditional categories in which the world’s legal systems were mapped. On the other hand, he widened the scope of the survey in comparison with that made by Walton and extended it to more systems. Lee attempted to show how civil tradition managed to resist the ever-increasing invasion of common law into areas that were traditionally civil realms. Later, an important figure in this field of study was Smith (1965: 4), who often used the expression mixed jurisdictions for those entities, “basically … civilian,” “that had been under pressure from the Anglo-American common law and … in part … overlaid by that rival system of jurisprudence.”


Smith’s most significant contribution to the growth and development of this area of studies was the idea that identifying the specific relationship between the common law and the civil law constituents was essential to define the identity of those systems. He noted that the identity of each of those legal systems was not unique. Conversely, Smith (1965) observed that these experiences were worthy of study, because they could be useful for their “neighbours in law” (that is, for the other mixed jurisdictions). Mixed jurisdictions came out of isolation and became a useful ground of comparison by studying those legal issues that they held in common (Smith 1965).23 Smith’s interest—far from being merely scientific—was rather practical. Because Smith was strongly oriented toward the civil law tradition, his survey was aimed at understanding if in those systems the civil law tradition could resist attacks by common law.


Palmer’s position did not, therefore, blossom like a flower in a desert. He walked on the path paved by the aforementioned scholars and refined their theories on mixed jurisdictions. In Palmer’s (2012b: 373) view, the taxonomy mixed jurisdictions encompasses those systems that, despite “the indisputable diversity of peoples, cultures, languages, climates, religions, economies, and indigenous laws existing among them,” share some characteristics, which this chapter will discuss further.


The first feature Palmer singles out is the specificity of the mixture, because those systems have their roots in civil law and in common law. These two traditions affect distinct areas of the legal system, playing the role of building blocks: the civil law tradition molds the field of private law, whereas the common law tradition shapes the fields of procedural, constitutional, and commercial law.24 Second, Palmer notes that this coexistence of different roots is accepted and considered obvious by those who live and work within those legal systems.25


The third important characteristic is that of “mentality,” a factor that encompasses the ways in which scholars who are insiders in mixed systems conceive of law. Palmer singles out three kinds of scholars at work in mixed jurisdictions: the purists, who have been educated according to civil legal culture and resist the interferences of common law;26 the pragmatists, who are open to contamination by civil and common law; and the pollutionists, who are in favor of Anglo-American law because they believe in its superiority.


A Different Perspective on Mixed Systems: Örücü’s Approach


Örücü’s approach has a wider scope than Palmer’s. Palmer’s approach aims at putting together specific systems sharing some features, and therefore Palmer’s focus is on the criteria ascertaining what a mixed system is. Nonetheless, Örücü’s effort seems aimed at formulating a theory able to explain the phenomenon of mixes that results from the interaction of laws of a different type or source. Therefore, Örücü’s focus is on how a system may be mixed.


The differences between Palmer’s and Örücü’s approaches concern the taxonomies used to describe their object of analysis: Palmer’s focus is on mixed jurisdictions, whereas Örücü (1996) refers to mixed legal systems. Palmer looks at a set of institutions, principles, and rules enacted in a given territory, whereas Örücü’s analysis goes beyond the scale of state. Her approach looks at all kind of mixes at the state, intrastate, and supranational levels. Although Palmer’s approach is grounded on exclusion (as the entities examined are restricted to a specific group sharing some basic features), the keyword that best summarizes Örücü’s approach is the opposite of exclusion—expansion (Örücü 2008).


What is disclosed by Palmer would be but one specific kind of mixing (resulting from the encounter of civil and common law traditions, defined by Örücü as simple), whereas other elements could affect the blend of mixed systems, such as the chthonic, religious, and customary ones interacting with one of the two main legal traditions and thus giving rise to other kinds of mixes. This approach is not restricted to Europe or to the Western world; it applies also to other contemporary mixed systems and to systems in transition. The resulting mix would depend on the degree of closeness or similarity among the factors forming the blend, according to the greater or lesser points of contact among the legal and social cultures of the blended traditions. The mixes could be accommodated on a spectrum (Örücü 2008: 12). At one end are those mixes that form a compound of elements from different legal traditions that lost their identity in the mixed system and, because of their strong affinity on sociocultural and legal-cultural grounds, are indistinguishable within the new entity. At the other end are the dysfunctional mixes—those that are not able to work correctly because of the huge differences in their traditions. In the middle, the systems in which the different elements coming from the diverse traditions are recognizable, because the degree of similarity of the systems giving rise to the mixed one is less evident.27


Örücü’s approach is developed through the intermingling of two theories borrowed from linguistics: the family trees approach28 and the wave theory. The first rests on the extension to legal systems of the theory disclosing the parentage of languages. This theory, Örücü (2008: 9) writes is “initially deconstructive, disintegrative, and critical,” is apt to unveil the ramifications and divergences among systems that come from the same root; however, it is not apt to explain similarities among systems that do not share the same roots, such as the convergences coming from horizontal transfers. Örücü pursues this aim through the wave theory, which explains common traits among diverse legal systems on the basis of the diffusion of the same institutions.


Örücü’s overt purpose is to reach an all-embracing theory of mixedness through which to explain all the different kinds of mixing and therefore draw “a more reliable map of the legal systems of the world” (Örücü 2008: 9). The phenomenon of mobility of law would make it possible to discover the ingredients and historical antecedents of each legal system together with their present blends through the mechanisms of pollination, cross-fertilization, and so forth.


Some elements of Örücü’s (1987) theory of mixedness are outlined in brief in one of her earlier articles devoted to legal systems. Mixedness would be the result of the crossing of elements belonging to three basic systems—civil law, common law, and socialist law.29 The internal logic of these systems would be coherent,30 resulting from the typical logical unfolding of the necessary elements,31 historically conditioned by “the attitudes about the nature and the role of law in society, the proper organization and operation of the legal system, the way law is or should be made, applied, studied, perfected, and taught; the legal culture or tradition relating to the legal system to the culture of which it is a partial expression” (Örücü 1987: 311). The idea of internal logic implies their pure nature. This logic is subverted when a system mixes basic elements of those three systems. Thus, mixed systems would be the by-product of the mobility of law. A system that at a given point may be considered part of a legal family may go out from it and float “on the periphery, poised on the verges of two, and sometimes three traditions” (Örücü 2002a: 133).


Whereas Palmer’s approach seems to have a practical aim—that is, to foster a dialogue among the systems that make up the mixed jurisdictions family to deal with legal issues that arise in daily legal practice—Örücü’s approach seems to have a more theoretical aim.


Recently, a different viewpoint on those systems has been supported by Seán Donlan, who emphasizes the idea of hybridity—an idea that straddles legal theory, legal history, anthropology, sociology, and comparative law (Donlan 2011a; 2011b; see also Chapter 2 of this volume). Whereas Palmer focuses on a certain kind of mix and Örücü aims to expand comparative analysis to other kinds of mixes (such as those found in Turkey), Donlan’s concept of hybridity paves the way for a different assessment of the complexity of the normative phenomenon. Hybridity is one of many ways in which normativity can be expressed containing state norms and nonstate norms. Nonstate norms are significant despite their lack of a legally binding character.32 The crucial difference between the two kinds of norms is the latter’s lack of institutional form.


Hybridity is able, more than other concepts, to explain the complexity of legal systems. As Donlan states in Chapter 2 of this volume, it “does not emphasize, as … in most discussions of mixed legal systems, the marriage of two relatively discrete and self-contained sections, but the deeper complexity shot through every aspect of legal and normative orders.” Donlan has applied that approach to the Mediterranean region as the fittest one so to have a grasp on its “complex history of conquest, colonization, and social and legal diffusion across shifting and porous political boundaries” (Donlan 2011a: 357). This complexity can be understood only by taking into account both legal33 and normative hybridity and by going beyond the level of state law, which is but one type of law that came later than nonstate or prestate law (Donlan 2011a: 360). As Donlan states in Chapter 2, legal and normative hybridity would be able to “cover the fluid complexity of both laws and norms at the levels of both principle and practice,” the word practice covering the aspects of interpretation and application of written law. Donlan’s analysis has to be carefully considered because it sheds light on the multifarious meanings normativity may have.


A different way of seizing normative complexity may be pursued through the recourse to the concept of legal tradition. In the next section, a specific viewpoint on tradition will be discussed, that of Patrick Glenn.


Legal Tradition and Polyjural Systems


At first sight, the category of legal tradition seems to disclose a point of view that is at variance with formal conceptions that are based on the equation of state law with law tout court and that affect the concept of the legal system and jurisdiction. Whereas law implied within the well-established conception of the legal system is identified with state legislation, legal tradition seems not to rely on formalistic and conceptual views of law and goes beyond the idea that the state enjoys a monopoly in law production.


This approach is not formalistic, and it stresses the value of time as a key factor to understand law instead of the value of space, which is closely linked to the idea of the state as the only possible lawmaker. More than other concepts, tradition would be able to highlight the role played by society in shaping its legal system. The premise, according to which legal tradition would be expression of a nonformalistic approach to law, is widely agreed on.34


I focus now on Glenn’s theories for a more comprehensive approach to tradition. Glenn points out that the concept of legal family has, as its basis, the idea of law as something that can be ascertained on an objective footing and that preexists (and is not created from) the conceptual tools used by a comparative law scholar to carry out a survey.35