Mixed Jurisdictions: The Roads Ahead
Chapter 3
Mixed Jurisdictions: The Roads Ahead
Professor Vernon Palmer’s (2012) introduction to Mixed Jurisdictions, now in its second edition, provides an outstanding analysis of the origins and characteristics of mixed jurisdictions in many Western countries. Often as the result of conquest and at times by choice, these countries have learned to live and also to love, if I may say so, a legal system based on continental European and Anglo-American concepts.
It is time, however, to look at the roads ahead. We may have very little quarrel with the analysis offered in Mixed Jurisdictions, but most of us may wonder what the future holds from the perspective of non-Western countries or jurisdictions. Those of us from countries with mixed Western legal systems seek not to have a temporary niche carved out for us as a mere marker in the paths we have traveled, a marker that legal anthropologists may use in the future to describe what existed in the past. We feel there is something unique about our legal systems and would like to continue our journey along new paths that will lead us to new quarries, where we can find materials from which to build not another niche, but a stronger edifice. The question we have to ask ourselves is whether these quarries exist mainly in our Western world or whether we can legitimately search for them elsewhere.
The systems analyzed in both the first and second editions of the book are “exclusively western, drawn as it is from Romano-Germanic and Anglo-American legal materials” (Palmer 2012: 8). It may be a personal feeling, but here in Malta those of us from the Americas are not only physically but also emotionally closer to systems that draw from sources other than traditional European ones. Having listened to scholars coming from primarily Islamic law countries, I have come to wonder about the roots and the nature of our particular legal systems. Now that we have identified what is common between us, contrasting these findings with what exists elsewhere will, I believe, help us learn more about the essential nature of our mixed jurisdictions, better understand ourselves, enrich our traditions, and share with others those facts that we have gathered. The third legal family “is also conceived for purposes of convenience, utility, and explanatory power, and basically it deserves to be used only if it provides better insights than comparative analysis has provided in the past” (Palmer 2012: 16).
My goal in this chapter is to pose some questions that may help us gain some of these insights. I choose to ask more than to answer, as experience has taught me not to try to provide solutions before surveying the ground on which I am being asked to build. And so I ask the following questions:
• First, how is it that existing Western-based mixed legal systems have come about?
• Second, how have some of the conditions that helped forge our systems been reaffirmed, and why do they survive?
• Third, how might these conditions be replicated elsewhere, thereby allowing us to see beyond the cultural limits of our world to other jurisdictions where we may find (a) that this third legal family is common or (b) that there are other systems—a fourth and fifth legal family, new or traditional—with a legitimate claim to be counted as part of something else?
Sociopolitical Foundations of Our Legal Systems
Mixed legal systems, as they have been identified, are generally the result of colonialism and impositions by the conquering power. It is true that we find exceptions, Israel being one of the latest and Scotland one of the earliest, but even in those cases, it was colonialism that led the British to Palestine, and it was cultural and economic expansion, if not expansion in other forms, that made British presence ever more meaningful in and around Edinburgh.
But colonialism is not now and has never been an exclusively British trademark. It has been around for ages, as we can ascertain from reading about the Greek origins of Cleopatra in Egypt or those of Julius Caesar and Marc Antony, her two Roman “sentimental partners,” as we would call them in today’s politically correct parlance. These latter two led an empire where law was an important building block. Colonialism as we define it today was also present in the expansion of the various Islamic caliphates and the multiple Chinese conquests, to add just two non-European examples.
In more modern times, we have had far-reaching, legally ruled empires centered in France, in Castile, in Lisbon, in Brussels, and in Rome, to name but some of the Western centers. At one time, the kings of Spain ruled over an empire on which, as was later said of its British counterpart, “the sun never sets.” The Spanish territory comprised as much, if not more land, than did the British Empire.
Why then, when we speak of mixed jurisdictions, do we speak mainly of countries that were conquered by English-speaking armies and not of those colonized by the French, the Spaniards, or others in many other parts of the world? The answer, I propose, lies in time, in politics, in demography, and in self-perception and not in philosophy or in law itself.
The Time Element
The answer lies in time because the political hegemony of other Western empires is today a thing of the past, and the influences the colonial powers left are either forgotten or taken for granted, accepted as “natural” in the same countries where they were first felt. The merchants who in Roman times met in the Palmyra Oasis in what is now Syria often communicated in Greek, some say, so as to show their resistance to Roman conquest and impositions, but this history is too far in the past to be noted in modern-day legal classifications. Some legal impositions are not part of today’s political reality.
The last of the great Western empires was British. London was last to deal with conquered peoples—especially conquered Western peoples, for culture has a lot to do with the fact that most mixed jurisdictions identified in Palmer (2012) are in place in countries where the former power was also Western and not in those where Western systems were superimposed as a whole, with little or no respect for entrenched values.
Spain lost most of its empire almost two centuries ago, in the early 1800s, when the American republics shed their political links with Madrid. The controlling elites, however, were very much in tune with the cultural mold of the old metropolis and chose to keep the many cultural traits they valued. They did not experiment with mixed legal systems because as leaders of new Western nations, struggling for recognition from what was then the center of the economic and intellectual world, they never thought of incorporating legal rules from nonmodern, which then meant non-Western, local ethnic groups. It was only in the late twentieth century that the descendants of native populations achieved some sort of cultural recognition, mainly in language rights (Muñiz Argüelles 2001).
It is not that some of the Spanish cultural or political leaders neglected to value and fight for the rights of the conquered. The Spaniard Fray Bartolomé de las Casas was one of the first in the modern era to stand out as a champion of those rights. The Jesuits in Paraguay also set up missions to aid local populations, albeit while keeping administrative control of the missions. However, the protection they afforded was not for local legal autonomy, but rather against outright exploitation and cultural genocide. Arguments for the rules of marriage and procedure, as important as they may be to us now, pale in the light of the struggle for mere survival as a people and a culture. Mixed jurisdictions were not in the minds of those who valued and defended other ethnic groups.
The French, who lost much of their Western empire to the British from the late eighteenth century to mid-nineteenth century, did attempt to deal with local cultures in their North African and sub-Saharan colonies, which were conquered primarily in the mid-nineteenth century during what some have called “the scramble for Africa.” Much has been said of the French colonial policy of assimilation,1 which meant that, in theory, all conquered peoples could aspire to become as much citoyens et citoyennes as those born in the Hexagon. It should be added, however, that assimilation did mean different things at different times and in different places. French policies were not so uniform as often portrayed.
In the late nineteenth century, Paris adopted, for some of its colonies, the Code de l’Indigénant, which recognized a separate legal system for some of the conquered. In theory at least, the institution resembled the so-called British indirect rule system. It is true that, when applied to non-Western peoples, the code came, at least for a time, with forced labor, multiple taxes, and forced conscription, which made it somewhat less appealing than the conquering nation would have thought. In addition, in areas of large French population, legal matters were solved in French-styled courts, and when local courts or legal rules were used, they applied only to the non-French, as can be seen not only in legal studies but also in writings such as Albert Camus’s L’Étranger. The mixed legal systems described in Palmer (2012) apply all rules to all groups, be they the conquerors or the conquered.
British rule over conquered non-Western peoples was not altogether gentle or respectful of their local values, which casts some doubt on why it is now at times portrayed as more accommodating and more acceptable than the other imperial systems.
Recent studies have argued that British policies were often similar to those of France, whether because Paris did not fully practice assimilation or because Britain did not always, to say the least, actually put in place its system of local autonomy through indirect rule.2 Obviously, there was little of local rule in the submission of China between 1839 and 1860 to further the opium trade, in the submission of local peoples who had faced off with the British in Burma, or in the suppression of others in places where there was a sparse population not needed for economic development, regardless of whether indirect rule was later recognized in some of these places. For the moment, it is sufficient to say that the impact of English-speaking conquests is more recent and thus more present than that of other countries, which were able to “transculturize,” if that word exists, or which were never able to impose their legal systems on others. The details of Spanish colonial policies in the Americas from the sixteenth to the early nineteenth centuries are somewhat distant, unlike those of nineteenth- and twentieth-century Anglo-American policies.
Political and Demographic Elements
The reason that the legal systems we currently identify as mixed combine Anglo constitutional and procedural rules and continental European substantive private rules lies partly, I believe, in politics. Two factors contribute to this outcome. The first is the character of British imperialism vis-à-vis the imperialism of France and Spain. The second is the desire of modern Western mixed jurisdictions to hold on to a cherished though sometimes idealized past, a topic I will briefly discuss later in the chapter.