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]. The term „mixed” that we have chosen rather than other terms such as „hybrid” or „composite” should not be interpreted restrictively, as some authors have done. This category therefore includes political entities in which two or more systems apply cumulatively or interactively, but also entities in which the systems are juxtaposed due to more or less clearly defined fields of application. [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.” 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] [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.” 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. Mixed legal systems such as those in Scotland and South Africa[1] differ from the classical common law and civil law systems in a combination of 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] [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. The most common is the birth of a mixed legal system as a product of failed colonialism, in which a culture was imposed by a colonialist power but an indigenous culture persisted to some extent.[15] Many African countries are examples of this. However, there is a significant difference of opinion on the actual meaning and components of a mixed system. Scholars of the „mixed jurisdiction” tradition, following in the footsteps of early British comparatists (see section 17.2 below), tend to limit their scope to a single type of hybrid where the most comprehensive research has been conducted – the common law and civil law mixtures.
In this perspective, the number of mixed systems in the field is reduced to less than twenty worldwide. However, many researchers under the influence of legal pluralism (including the comparatists who conducted the Ottawa study mentioned above) use a more comprehensive factual definition that broadens the scope and knows no obvious limitations. 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] .