Article by William Tetley
In this Article, Professor Tetley first defines and examines the characteristics of the “civil law,” the “common law,” “legal systems,” “mixed legal systems,” and “mixed jurisdictions,” focusing particularly on those jurisdictions where the common law tradition has encountered the tradition of the civil law (either codified, as in Quebec and Louisiana, or uncodified, as in Scotland and South Africa). Acknowledging both the challenges and the advantages of mixed jurisdictions, he then reviews the history and development of three of them—Israel, Quebec/Canada, and South Africa—and demonstrates how a number of key factors are crucial to strengthening and fostering their development. Especially important are the following factors: the presence (in federal states) of two legislatures, dual court systems, universities and specialized law institutes, and, above all, the recognition and use of two or more official languages in legislation, judicial proceedings and documents, government services, and education. Conversely, he shows how the absence of such elements can leave a mixed jurisdiction prey to gradual erosion through the influence of its more powerful legal tradition. He also considers the role of language within the contemporary European Union and further indicates how maritime law is itself a complete, mixed legal system drawing on a rich heritage of civilian and common law components, enshrined and expressed in more than one language. He concludes with the challenging view that two or more languages may well be essential to the viability of mixed jurisdictions today, as well as the more widespread acceptance of the concept of two nations within a single State.
About the Author
William Tetley. Professor of Law, McGill University, Distinguished Professor of Maritime and Commercial Law, Tulane University, and counsel to Langlois Krouströn Desjardins of Montreal.
Citation
78 Tul. L. Rev. 175 (2003)