Article by Hector L. MacQueen
The Article argues that it is contrary to the spirit of mixed legal systems to analyse them on the basis that one part of the mix is good and the other bad. Instead, mixed systems need to be evaluated on their own terms—that is, as neither civil law nor common law—and analysts must accept that a mixed past means a mixed future. In thinking about common law influences, we need to be aware that English law has moved a long way since the early nineteenth century when it first began to influence many of the mixed systems. It could be argued that English private law has been becoming a mixed system itself in that period of nearly two centuries, while the civil law of Europe has been exposed to influences that look common law in nature. In the mixed system of Scots law, at least three types of development can be identified. Significant areas of Scots law that have a civilian origin have never been seriously challenged from a common law perspective. Scots law has also devised distinctive solutions as a mixed system, and “re-civilian-isation” is also apparent in certain other areas. The future of mixed systems is most likely to be one of continuing “mixed-ness” rather than either common law or civil law dominance.
About the Author
Hector L. MacQueen. Professor of Private Law, University of Edinburgh.
Citation
78 Tul. L. Rev. 411 (2003)