Mixed Legal Families in South Africa

[8] As Visser says in his 2003 article 78 (1&2) Tulane Law Review “Cultural Forces in the Making of Mixed Legal Systems” at page 46: “In a sense, most, if not all, legal systems in the Western world are mixed, since almost all the systems one wants to distinguish have been constructed from a variety of different sources.” But however one classifies mixed legal systems, their very existence very quickly leads to questions about their development, if any. The fact that mixed legal systems, which have been developed primarily through the incorporation of common law features into structural and procedural areas, whereas substantive law consists of distinct civil and common law models,[10] raises the question of whether they constitute a genuine third legal remedy and not a hybrid and imperfect existence between the two important legal channels of common law and law. civil with a tendency to adopt one or the other legal route[11]. There are three ways to “arise” from a mixed legal system.[14] [4] In addition to the important and Eurocentric main division in civil law and common law and thus the classification of mixed legal systems as the third group, other legal families or traditions such as Talmudic, Islamic, Hindu, Asian, Nordic and Eastern are also recognized. Colonization or successive occupation is another possibility for the birth of a pluralistic jurisdiction. Louisiana and Quebec, both of which experienced a clash between the English and French systems,[16] and South Africa, where English and Romano-Dutch legal cultures collided.[17] The South African judicial system is organized according to a clear hierarchy by Chapter 8 of the Constitution of the Republic of South Africa, in particular Article 166, and consists (from the lowest to the highest judicial authority): Nevertheless, 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] This introductory chapter first sets out the purpose of the book, which is to provide a doctrinal history of South African law. He then discusses the Romano-Dutch heritage of South African private law, the three graces of South African law, legal reporting in South Africa during the colonial period (1857-1910) and from 1910, and the growth of legal literature in South Africa. 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. [5] The term “legal family” was introduced by Zweigert & Kötz. According to Jaques Du Plessis, who, in his contribution “Comparative Law and Mixed Legal Systems” for the publication Reimann & Zimmermann (ed.), The Oxford Handbook of Comparative Law (Oxford 2006) at page 480 describes a family of laws as a classification instrument that serves coherent explanatory objectives for the realization of the similarities and differences of certain legal systems and for the realization of the developments of these systems. The latter objective becomes particularly relevant in the context of this article. 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. Scotland is a country that has neither a colonial past nor an economic “late bloomer”, but which has nevertheless developed into a mixed system[21]. Until the early nineteenth century, Scottish private law resembled that of an uncodified civil system.[22] From then on, it was developed by lawyers and courts in a more casuistic direction, following English law and precedents,[23] which, also due to the political union with England, penetrated over time the civil foundations, thus following the general trend of European civil law, with the fact that it never completely abandoned civil influence.[24] Whether Scots law is therefore the result of a conscious choice of the “best rule”[25] or rather represents the Scottish history of foreign influence[26] and, to some extent, control[27] is controversial. In addition, the legislation has also created a number of specialized courts to deal with specialized areas of law of importance to the public and to avoid a delay in the main infrastructure of law administration. These courts exist alongside the judicial hierarchy; Their decisions are therefore subject to the same appeal and review procedure by the ordinary courts, from a certain level, depending on the specialised court concerned. Within these specialized courts, there are, to name but a few, the Court of Appeal for Competition, the Electoral Tribunal, the Land Claims Tribunal and the Labour and Labour Court of Appeal. [10] Mixed legal systems such as those in Scotland and South Africa[1] differ from the traditional common law and civil law systems in that they combine aspects of both traditional families.

This is why they are also called “hybrid systems”[2] or “pluralistic jurisdictions”[3] and embody a third legal family[4][5]. For example, according to Du Plessis[6] and Palmer[7], the mere existence of both customary and civil aspects is not enough[8]. They called for sufficient emphasis on these two elements to speak of a “mixed legal system in the strict sense,” while the aspect of bilingualism, that is, the appearance of more than one language, is perceived in a legal system as a characteristic rather than a criterion.[9] [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.” South Africa has a “hybrid” or “mixed” legal system[1] formed by the interweaving of a number of different legal traditions: a civil law system inherited from the Dutch, a customary law system inherited from the British, and a customary law system inherited from indigenous Africans (often called African customary law, of which there are many variations depending on tribal origin). These traditions had a complex relationship, with English influence most clearly expressed in procedural aspects of the legal system and jurisprudential methods, and Romano-Dutch influence most clearly expressed in its substantive private law. [2] As a general rule, South Africa follows English law in matters of criminal and civil procedure, company law, constitutional law and the law of evidence; while Roman-Dutch common law is followed in South African contract law, tort law, personal law, substantive law, family law, etc. With the entry into force of the interim constitution in 1994 and its replacement in 1997, the final constitution, another component was added to this fabric. 5 Potential of mixed legal systems as creative sources of their own types of rules [21] Although Scotland is not alone: the Channel Islands also have a mixed system, according to Reid in his journal article “The Idea of Mixed Legal Systems” in Tulane Law Review 78 (1&2) of 2003, although it is far from trade routes and does not fit properly into the pattern of economic “laggards”.