It has traditionally been argued that mixed jurisdictions were those where ‘the Roman-Germanic tradition has become suffused to some degree by Anglo-American law’ (Walton: 1980, 1) or vice versa. There remain however, questions about how much mixing is required and at what level to justify inclusion in this ‘family’. Increasingly it is clear that there are different models, determined by different criteria (Örücü, Attwooll and Coyle 1996). For example, the division of legal areas into traditional civilian categories may be a clue, as may the presence of a code or codes, although neither may be definitive. The importance attributed to court decisions may point to a system that favours the rule of precedent or stare decisis (Dainow 1974), or this may simply be a pragmatic way of ensuring some consistency in the law, especially if there are not many cases being decided at the highest level each year. Terminology or legal language may be a clue, but the abandonment of Latin as an obscure legal language may simply be the result of a little modernisation. More obliquely may be drawn to the ‘way lawyers think’ as if this was self-evident from the edited judgments of court reports or the writings of academics, or the way judges conduct themselves (Tetley 2000). The focus may be on private law or on public law, or adjectival law or substantive law. Rarely however, is mixing found to be even or consistent, hence the many metaphors used to describe mixed legal systems. The classification of ‘mixed legal systems’ has, over the years, become a little more extended and a little less rigid, reflecting perhaps, the changing form and function of ‘family’ experienced in our own societies. However, this paper argues that the nuances of mixing are insufficiently recognised and that there is still work to be done on breaking down conceptual and classificatory barriers to embrace emerging legal systems which might be described as experiencing the ‘the art of mayonnaise’ to use a salad metaphor (Örücü 1996) . In other words, legal systems where the mixing is of varied success and variable at different times in its development. The point is that legal systems are not fixed in time but continually changing and adapting, not as systems but as parts of systems. This is particularly true of ‘young’ systems emerging from colonial rule but, rather like a young kangaroo, still very much in the colonial or neo-colonial ‘pocket’ or ‘pouch’, with debatable viability if cast out too soon or required to face the challenges of the world too fast. At the same time, however, the globalisation of ideas offers a tempting ‘pick and mix’ of possible alternatives for legal development once the young state does emerge. This challenge to the nature and form of mixing is based on an examination of one post-colonial legal system, that of the Republic of Vanuatu in the South Pacific. Formerly an Anglo-French Condominium, today the legal system is not a civil law/common law mix, but a customary law/common law mix albeit with some civil law seasoning and a strong influence of religious principles if not laws. While under colonial administration French law and English law was introduced into the islands of what were then called the New Hebrides/Nouvelle Hebrides, this was rarely for the benefit for or applicable to the indigenous people but was for the respective citizens of those metropolitan powers settled or sent there, and those other non-natives who ‘opted’ for one or other metropolitan system. At this level there was no mixing, indeed the British and French managed to rule the Condominium with astonishing separateness. Indeed it is questionable whether this could even be called a ‘reception’. Where the condominium powers did con-join was in the issue of regulations directed at controlling or subduing the ‘natives’. The scope and reach of these joint regulations was limited, and for the most part indigenous people continue to conduct their lives in the years between 1902 and 1980 according to their own customary laws and customs. At independence three important things happened which were to have an impact on the mixedness or not of the legal system: many French – including lawyers and judges, left and burnt their books; customary law became an official source of law in the Constitution; English and French law remained applicable and of equal formal value under the Constitution in circumstances where there was no local law. However, the consequence of the first was that although there were many local people who had been educated in French and whose second language was French, and indeed some who had intermarried with French citizens, as well as French settlers, they struggled to find a French lawyer or access to French law, and for some time no national laws appeared in the French language due to a lack of legal translators. English law, or law based on common law principles and doctrines became increasingly dominant due to easier access to legal sources, the common law background of ex-patriate judges and lawyers brought in to staff the courts, and the use of English as a common language between the various recently independent island states of the region which had been under British-influenced colonial administration. As time has elapsed however, more local lawyers have emerged to sit as magistrates and judges or to argue in the court and advise clients in their offices. Some of these have been educated in France (notably the Chief Justice) or New Caledonia, others in Australia and New Zealand and others at the regional University of the South Pacific, where comparative legal studies across the jurisdictions of the university’s member states are the order of the day. The Vanuatu national Parliament has also passed many of its own laws to replace, in part at least, those left behind at independence. So where the common law has survived it has in turn become indigenised and in this respect perhaps hybridised. At the same time however, the elevation of customary law into a formal source of law meant that the courts could not ignore the law which governed the lives of most of the countries people, even if this was not homogenous, presented evidential difficulties and was beyond the grasp of most non-native lawyers working in the country. In the areas of land and family, and to a lesser extent in criminal law, customary law was, and remains a significant factor. It has also been influential in the development of dispute forums and procedures. This mixing has however been uneven. In some substantive areas of the law there is very little reference to customary law, often because the subject matter falls outside the traditional scope of customary law, for example contracts and mercantile affairs. Elsewhere the mixing is supported in practice and in domestic legislation, for example in the law of marriage and succession. In some instances common law and customary law run side by side and formally do not mix but in practice may mix. An example is in the case of land. In principle customary land cannot be alienated to non-indigenous people except by way of the introduced institution of the lease. In practice however, customary land-owners are creating leases over their land in favour of themselves or their family members in order to be able to mortgage the land and develop it. In other words, people are doing their own mixing. While the civil law has suffered from gross neglect and abandonment, vestiges of it remain. There is for example no jury trial in the formal courts and no expression of dissenting opinions in courts consisting of more than one judge. While the procedure is primarily adversarial, it is not unknown for the judge to become investigative and take it upon himself to interview those involved – either in a pre-trial conference in civil proceedings, or in chambers, or to set off to investigate the site of disputed land claims. There has moreover, been investment in building up French translations of existing laws, and most recently in educating Francophone lawyers. A few French legal practitioners have once again settled in the country and there is concerted effort by the Franco-phone community (indigenous and non-indigenous) to secure the language, French education and culture. There are moreover forms and institutions found which are more civil than common, for example a penal code and a written constitution with a bill of rights, and although there is no civil code there is a consolidation of statutes effected on a regular basis. This year Vanuatu celebrates thirty-two years of independence. As an island state of many islands its people are often isolated from the wider world, but the state as such is part of a regional and global community. Regional imperatives and international obligations increasingly require the law to be adapted and adopted to meet new demands. The models which are used or the reforms which are made are influenced by a diversity of other legal systems including those of the European Union – through EU-ACP agreements, the international community, through TRIPS and WTO compliance, and as a result of consultations with near neighbours, for example Australia and New Zealand, both of which have their own indigenized common law systems. So the legal system is in constant evolution, and the influences at work are not purely legal but also political, economic and social. This evolution takes place at many different levels, from the magistrate’s court to the Court of Appeal, from local unwritten customary laws, to international treaties. This paper looks at one evolving area of law and examines the influences at work to discover the degree and form of mixing that is taking place. The area selected is that of intellectual property law which has national, regional and international dimensions and calls into play formal and informal laws, colonial and post-colonial influences in determining the direction that the law will take. The topic is timely in so far as Vanuatu has just joined the WTO and has to meet its obligations under TRIPS. At independence it had in place a number of foreign laws applicable to western forms of intellectual property, but has had for centuries, customary ways of managing and protecting traditional knowledge and indigenous cultural property. It now stands at the cross-roads and must determine how it goes forward.
|Published - 14 May 2012
|Mixed Legal Systems East and West: Newest Trends and Developments - Chamber of the Maltese Parliament, Valetta, Malta
Duration: 14 May 2012 → …
|Mixed Legal Systems East and West: Newest Trends and Developments
|14/05/12 → …