MIXED JURISDICTIONS WORLDWIDE - Assetsassets.cambridge.org/97805217/68573/frontmatter/...Edited by...

MIXED JUR I SD ICT IONS WORLDWIDE

second edition

This examination of the mixed-jurisdiction experience makes use of aninnovative cross-comparative methodology to provide a wealth of detailon each of the nine countries studied. It identifies the deep resemblancesand salient traits of this legal family, and the broad analytical overviewhighlights the family links while providing a detailed individual treat-ment of each country which reveals their individual personalities.This updated second edition includes two new countries (Botswana

and Malta), and the appendixes explore all other mixed jurisdictions andcontain a special report on Cameroon.

vernon valentine palmer is Thomas Pickles Professor of Law atTulane University, New Orleans, and Co-Director of the EasonWeinmann Center for Comparative Law. A leading expert on compara-tive law, he has taught widely in Europe, and is the founder and Presidentof the World Society of Mixed Jurisdiction Jurists.

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MIXED JURISDICTIONS

WORLDWIDE

The Third Legal Familysecond edition

Edited by

VERNON VALENTINE PALMERThomas Pickles Professor of Law and Co-Director of the EasonWeinmann Center for Comparative Law, Tulane University






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Published in the United States of America by Cambridge University Press, New York

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© Vernon Valentine Palmer 2012

This publication is in copyright. Subject to statutory exceptionand to the provisions of relevant collective licensing agreements,no reproduction of any part may take place without the written

permission of Cambridge University Press.

First published 2012

Printed in the United Kingdom at the University Press, Cambridge

A catalogue record for this publication is available from the British Library

Library of Congress Cataloguing in Publication dataPalmer, Vernon V.

Mixed jurisdictions worldwide : the third legal family / Vernon Valentine Palmer. – 2nd ed.p. cm.

Includes index.ISBN 978-0-521-76857-3

1. Civil law systems. 2. Common law. 3. Legal polycentricity. I. Title.K585.P35 2012

340.5–dc232012015494

ISBN 978-0-521-76857-3 Hardback

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websites is, or will remain, accurate or appropriate.






For Valentin and Martha






CONTENTS

Preface to the second edition page xiPreface to the first edition xiiiList of contributors xviList of select abbreviations xviii

part i Introduction and comparative overview 1

Introduction to the mixed jurisdictions 3vernon valentine palmer

I A glimpse at the extended family 3

II The mixed jurisdiction in profile: threecharacteristics 7

III The question of a third legal family 11

IV Research methods and country reports 16

1 A descriptive and comparative overview 19vernon valentine palmer

I The mixed jurisdiction as an historical idea 19

II Upon an invisible foundation: the claims of culture to thecivil law sphere 24

III The cultural voices of judge and jurist: purists,pragmatists, and pollutionists 39

IV The system builders and their edifice 44

V The linguistic factor: the demands of dualism 50

VI The place of precedent in legal reasoning and in thescheme of legal sources 54

vii






VII The two receptions of common law: pattern andprocess 64

VIII “Original law”: the process of creating autonomouslaw 71

IX The broad assimilation of Anglo-American procedureand evidence 74

X Commercial law: the role of the dominanteconomy 79

Interim conclusions 89

part ii The comparative evidence 93

2 The Republic of South Africa 95c. g. van der merwe, jacques du plessis ,

marius de waal, reinhard zimmermann, and

paul farlam

3 Scotland 216elspeth reid

4 Louisiana 277vernon valentine palmer and harry

borowski

5 Quebec 354michael mcauley

6 Puerto Rico 381luis mun iz-arguelles

7 The Philippines 452pacifico agabin

8 Botswana 481charles fombad

9 Malta 528biagio ando , kevin aquilina,

j . scerri-diacono, and david zammit

10 Israel 577tamar gidron

viii contents






Conclusions 611vernon valentine palmer

Appendix A Questionnaire 614Appendix B Other mixed jurisdictions of the world 625Appendix C Special report on Cameroon 632Index 675

contents ix






PREFACE TO THE SECOND EDITION

A decade has quietly passed since the first edition and there have been somany notable developments that only a few can be mentioned here.Perhaps the most noticeable development has been a quickening ofinterest and a broadening of understanding of the mixed jurisdictions.At least amongst comparative lawyers, one senses there is greater rec-ognition of the subject and a willingness to debate its premises. AWorldSociety of Mixed Jurisdiction Jurists was formed in 2002 to achievegreater visibility, stimulate research, and draw dispersed scholarstogether. This has been largely successful. As a result of major confer-ences held by the Society in New Orleans (2002), Edinburgh (2005),Stellenbosch (2009), and Jerusalem (2011), more than seventy newarticles and papers were published in law reviews and journals. Thesescholarly gatherings indeed spawned the creation of a related organiza-tion, Juris Diversitas, which promptly launched a project to studyMediterranean hybridity. The decade, of course, also saw the publica-tion of important new books, for example a new volume of essays on thelife and legacy of T. B. Smith, the first work comparing Louisiana andScots private law, and the completion of a valuable trilogy on SouthAfrican and Scots law. This outpouring immensely benefitted thepresent work.

This edition reflects the continuing challenge of defining, classifying,and understanding the processes going on within the mixed jurisdic-tions. It continues to test T. B. Smith’s thesis, stated more than fifty yearsago, that these systems are veritable “neighbours in law” that displayclosely comparable characteristics. Indeed this edition broadens thecomparative evidence for this assertion. The country coverage has beenexpanded from seven to nine jurisdictions, by adding chapters on Maltaand Botswana. Literature and information about each country has beenfully updated, and new issues raised that had not been previously treated.Overall these changes have brought about a substantial improvementover our first efforts.

xi






Before closing, I must sadly note the passing away of two inspirationalscholars, John Brierley and Stephen Goldstein, who are missed not onlyas friends and mentors but as truly learned contributors to the earlieredition.

New Orleans,July 14, 2011

xii preface to the second edition






PREFACE TO THE FIRST EDITION

The aim of this book is to understand the mixed-jurisdiction experience.I am referring to the legal experience of South Africa, Scotland, Quebec,Puerto Rico, the Philippines, Louisiana, and Israel where common lawand civil law coexist and commingle and constitute the basic materials ofthe legal order. There are indeed other mixed jurisdictions1 but theexperience of these seven forms the core of this study.

I cannot pretend that this study will capture, as in a bottle, the essenceof the experience. The subject is far too complex and elusive for that to berealistic, and legal research on the mixed jurisdictions is currently in itsinfancy. This is, to my knowledge, the first attempt to study thesesystems collectively and more importantly the first attempt to subjectthese systems to a cross-comparative analysis. The wide scope andabstract nature of the enquiry will not put flesh and blood on theskeleton. It is somewhat unlikely that readers completely unfamiliarwith systems of this kind will come away with a keen sense and feel fortheir distinctive cultures, methods and history. Naturally one wishes thatmay happen, but my aim was necessarily directed at another level.

The “experience” I hope to illuminate is a broad evolutionary one thatmay reveal the salient traits, trends, and tendencies within such systems.The present study is concerned with finding descriptive characteristicsand not with summarizing substantive development. This focus will beunderstandable to comparative law scholars and students of foreignsystems, but this book is also addressed to those who work, teach, andpractice within mixed jurisdictions. They already know the trees of theforest very well, but perhaps have less familiarity with the forest as awhole. That is because forests of this kind are unusually thick andtangled. The typical mixed jurisdiction, I believe, is more difficult totake in, as a totality, than other systems. It helps to have a flexible legalculture, some intellectual detachment, fluency in languages, and some

1 See Appendix B.

xiii






appreciation of comparative models, but there are no guarantees.Specialization in one teaching or practice area is apt to produce periph-eral blindness and cast no light on the general subject. George Grettonhas said of the Scottish experience, “the truth is that one can live andwork in a system and still massively fail to understand it in context.”2

Gretton’s remark would be well applied to the denizens of all the forests.The operative thesis that I sought to test in planning this study is that

mixed jurisdictions, despite very obvious diversities in terms of theirpeoples, cultures, religions, and languages, have closely related legalsystems. It was my observation, based on years of living within, teaching,and writing about these systems, that there were numerous similaritiesand shared tendencies that could not be explained away as a matter ofcoincidence. Since there is no general political or cultural frameworkbinding these countries to similar paths, I wondered whether factorswithin the legal systems themselves actually drove this process, such astheir bifurcated civil/common law structures, Anglo-Saxon prototypetribunals, and English as a common language. Perhaps this was anoutstanding illustration of law’s path dependency and autonomoushistory. Whatever the reason, the persistence of strong similarities wasall the more impressive in light of these diversities. These systems hadbeen generally neglected by comparative law scholars, but the reason forthis was clear. It must have seemed counterintuitive to think that systemsso separated by history, geography, and cultures might belong in thesame legal family.

Was there an essential legal unity that justified placing them in thesame family? The title of the book clearly states my own conviction, andmy introductory essay and “interim conclusions” state the supportingreasons. The test of a legal family’s existence is for me a functional one –whether there is sufficient similarity to make comparisons fruitful andgeneralizations worthwhile. Allow me to emphasize, however, that thisstudy did not set out to prove but to test this thesis. Whether the readeragrees or prefers instead the Scottish verdict “not proven,” my originalpurpose will have been well served.

I would like to express my gratitude to my colleagues and collabora-tors Pacifico Agabin, Jean-Louis Baudouin, John Brierley, Ennio Colon,Cornelius van der Merwe, Jacques du Plessis, Marius de Waal, PaulFarlam, Reinhard Zimmermann, Stephen Goldstein, Robert Leslie, and

2 “Scots Law in a Golden Age” in A. J. Kinahan (ed.), Now and Then: A Celebration ofSweet & Maxwell’s Bicentenary 1999 (London 1999), p. 164.

xiv preface to the first edition






Elspeth Reid for their labors of love on behalf of this international study.Their enthusiasm and cooperation vastly exceeded what I had any rightto expect. A special debt of gratitude is owed to Professor PedroFrancisco Silva-Ruiz of the University of Puerto Rico School of Lawwho reviewed the Report on Puerto Rico in draft form and made manyuseful suggestions and contributions. I must also record my thanks toProfessor Shael Herman of the Tulane Law School who was kind enoughto read over the Louisiana Report in draft form. Finally I would like toexpress deep appreciation to my secretaries Carol Burns and ClothildeJohnson and my research assistants Matthew Sheynes and EmmaVelkova for the talented dedication they brought to this project.

New OrleansMay 1, 2000

preface to the first edition xv






CONTRIBUTORS

pacifico agabin is Professor of Law in the University of thePhilippines and member of the firm Agabin, Verzola, and Layaoen inMakati City, Philippines

biagio ando is Lecturer of Private Comparative Law, Faculty ofPolitical Sciences, University of Catania

kevin aquilina is Associate Professor and Head of Department ofPublic Law, Faculty of Laws, University of Malta

harry borowski is a JSD candidate at the Tulane Law School

marius de waal is Professor of Private Law, University ofStellenbosch, South Africa

jacques du plessis is Professor of Private Law, University ofStellenbosch, South Africa

paul farlam is an Advocate of the High Court and a member of theCape Bar, South Africa

c. m. fombad is Professor and Head of Department of Public Law,University of Pretoria, South Africa

tamar gidron is Professor of Law and formerly the Dean, The HaimStriks School of Law, College of Management, Academic Studies, Israel

michael mcauley was Associate Professor of Law in Louisiana StateUniversity from 2001 to 2006 and now practices as an Advocate of theBar of Quebec

xvi






c. g. van der merwe is Research Fellow in the Department of PrivateLaw, University of Stellenbosch and was formerly Professor of Civil Lawat the University of Aberdeen, Scotland

luis mun iz-argelles is Professor of Law, University of PuertoRico Law School

vernon valentine palmer is Thomas Pickles Professor of Lawand Co-Director of the Eason Weinmann Center for Comparative Law,Tulane University, New Orleans

elspeth reid is Professor of Scottish Private Law in the University ofEdinburgh, Scotland

jotham scerri-diacono is partner in the firm of Ganado &Associates, Malta

david zammit is Senior Lecturer in Law and Anthropology and Headof Department of Civil Law, University of Malta

reinhard zimmermann is Professor of Private Law, Roman Law,and Comparative Law, University of Regensburg and Director, MaxPlanck Institute for Foreign Private Law and International Private Law,Hamburg

list of contributors xvii






SELECT ABBREVIATIONS

Law reviews

A. L. R. American Law ReportsAm. J. Comp. Law American Journal of Comparative LawANZLH E-Journal Australia & New Zealand Law and History

E-JournalAPS Acts of Parliament of Scotland (pre-1707)Ariz. J. Int’l and Comp. Law Arizona Journal of International and

Comparative LawASP Acts of the Scottish Parliament (post-1999)Botswana L. J. Botswana Law JournalC. de D. Cahiers de DroitCamb. L. J. Cambridge Law JournalCan. Bar Rev. Canadian Bar ReviewCan. J. L. & Juris. Canadian Journal of Law and JurisprudenceCap. U. L. Rev. Capital University Law ReviewCape L. J. Cape Law JournalCILSA Comparative and International Law Journal of

Southern AfricaCol. L. Rev. Columbia Law ReviewDe Rebus The South Africa Attorneys JournalEdin. L. Rev. Edinburgh Law ReviewEJCL Electronic Journal of Comparative LawEuropean Rev. of Private Law European Review of Private LawGeorge Wash. L. Rev. George Washington Law ReviewHarv. L. Rev. Harvard Law ReviewICLQ International and Comparative Law QuarterlyIECL International Encyclopedia of Comparative LawIsrael L. Rev. Israel Law ReviewJ.A.L Journal of African LawJ. of Comp. Law Journal of Comparative LawJ. Religion Journal of Religion

xviii






Jurid. Rev. Juridical ReviewL & Ineq. J. Law & Inequality JournalLa. Hist. Quart. Louisiana Historical QuarterlyLa. L. Rev. Louisiana Law ReviewLGDJ Librairie generale de droit et de jurisprudenceLoy. L. J. Loyola Law JournalLoy. L. Rev. Loyola Law ReviewLQR Law Quarterly ReviewMcGill L. J. McGill Law JournalMich. L. Rev. Michigan Law ReviewOsg. H. L. J. Osgoode Hall Law JournalPh. L. J. Philippine Law JournalR. du B. Revue du BarreauR. du D. Revue du DroitRev. Col. Abo. Revista Colegio de AbogadosRev. Jur. UI Revista Jurídica de la Universidad Inter-

Americana de Puerto RicoRev. Jur. UPR Revista Jurídica de la Universidad de Puerto RicoR. G. D. Revue Generale de DroitRIDC Revue Internationale de Droit CompareR. J. Q. Rapports Judiciaires du QuebecR. J. T. Revue Juridique ThemisSAJHR South African Journal of Human RightsSALJ South African Law JournalStellLR Stellenbosch Law ReviewSt. Louis U. L. J. St. Louis University Law JournalTheoretical Inq. L. Theoretical Inquiries in LawTHRHR Tydskrif vir Hedendaagse Romeins-Hollandse RegTSAR Tydskrif vir die Suid-Afrikaanse RegTul. Civ. L. Forum Tulane Civil Law ForumTul. Eur. & C. L. Forum Tulane European and Civil Law ForumTul. J. Intern’l and Comp. Law Tulane Journal of International and

Comparative LawTul. L. Rev. Tulane Law ReviewTvR Tydskrif voor RechtgeschiedenisU. Botswana L. J. University of Botswana Law JournalW & L Washington & Lee Law ReviewYale J. Intern. Law Yale Journal of International LawYale L. R. Yale Law ReviewZEuP Zeitschrift für Europäisches Privatrecht

list of select abbreviations xix






Case reports

AC Appeal Cases (United Kingdom)AD Appellate Division (South Africa)AER All England ReportsBCLR Butterworths Constitutional Law ReportsBLR Botswana Law ReportsBuch. Buchanan’s Appeal Cases (Cape)CCA Circuit Court of AppealsCowp. CowperCPD Cape Provincial Division (South Africa)CSOH Court of Sessions, Outer HouseD Dunlop Court of SessionsDPR Decisiones de Puerto RicoEDC Eastern Districts Courts of the Cape of Good HopeER England ReportsF. Supp Federal Supplement (USA)HL House of LordsHLC House of Lords CasesISRDC Israel District CourtISRSC Israel Supreme CourtJOL Judgments-on-line, BCLRKB King’s BenchMart. (OS) Martin’s Old Series (Louisiana)Menz. Menzies’ Reports (Cape Supreme Court Reports)OR Official Reports (Transvaal)PRR Puerto Rico ReportsPhil. Philippine Law ReportsQB Queen’s BenchQBD Queen’s Bench DivisionR Rettie (Court of Session)Rob. Robinson’s ReportsS Shaw (Court of Session)SA South Africa Law ReportsSAFLII South African Legal Information InstituteSC Session CasesSC(HL) Session Cases (House of Lords)SCR Supreme Court ReportsSCRA Supreme Court Reports Annotated (Philippines)SLT Scots Law TimesSo. 2d Southern Reporter (Second) (Louisiana)

xx list of select abbreviations






TPD Transvaal Provincial Division (South Africa)TSPR Decisiones del Tribunal Supremo de Puerto RicoUKSC United Kingdom, Scottish casesW and S Wilson and Shaw (Court of Session)WLR Weekly Law Reports

Other abbreviations

La. Bar Assn. Louisiana Bar AssociationR. S. Revised Statutes

list of select abbreviations xxi






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