Quebec and Her Sisters in the
Third Legal Family
Vernon Valentine Palmer*
The lecture proceeds by means of a five-fold
The global legal landscape is populated with at
least three legal families: civil, common, and mixed.
This third family, and Quebecs place within it, forms
the subject of the 2008 Wainwright Lecture. Professor
Vernon Palmer proposes that although jurisdictions in
this family may share certain features, there is no single
model of a mixed jurisdiction. A thriving legal system,
like that in Quebec, inevitably draws support from its
own distinctive social, cultural, and
institutional
context.
exploration of the concept of mixed jurisdictions:
(1) An overview of the work of earlier legal
scholars such as F.P. Walton, Robert Warden Lee, and
T.B. Smith, tracing the origins of the concept back to its
Egyptian roots, and then forward to its current
academic reception;
(2) An examination of legal pluralism. Professor
Palmer suggests that although pluralism provides a
critical tool for recognizing and examining hybrid
systems, its liberal and inclusive nature fails to produce
a useful taxonomy of legal systems;
(3) A provisional definition of a classical mixed
jurisdiction based on its typical shared features or
components, highlighting the role that subjective
awareness plays in identifying and shaping mixed
jurisdictions;
(4) An explanation of the concept of a legal family
and of the classification of mixed jurisdictions as a
distinctive, third legal family;
(5) A discussion of the many ways in which two
legal traditions may mix. Professor Palmer concludes
the lecture by arguing that there is no single paradigm
of a mixed
jurisdiction. Quebecs own unique
experience helps illustrate this proposition.
La Confrence se dploie
Le paysage juridique global est peupl dau moins
trois familles juridiques : de droit civil, de common law
et de droit mixte. Cette troisime famille, ainsi que la
place quy occupe le Qubec, constitue le sujet de la
Confrence Wainwright 2008. Le professeur Vernon
Palmer avance que mme si les juridictions de cette
famille partagent parfois certaines caractristiques, il
nexiste pas de modle unique de juridiction mixte. Un
systme juridique florissant comme celui du Qubec
sappuie invitablement sur son propre contexte social,
culturel et institutionnel distinctif.
travers une
exploration en cinq parties du concept de juridictions
mixtes :
(1) Un survol des travaux des juristes fondateurs,
tels que F.P. Walton, Robert Warden Lee et T.B. Smith,
afin de retracer les origines du concept jusqu ses
fondements gyptiens pour ensuite le ramener vers sa
rception doctrinale actuelle ;
(2) Une apprciation du pluralisme juridique. Le
professeur Palmer suggre que le pluralisme fournit un
outil critique pour identifier et tudier les systmes
hybrides, mais que sa nature librale et inclusive ne
parvient pas tablir une taxonomie utile des systmes
juridiques ;
(3) Une dfinition provisoire de juridiction mixte
classique, base sur ses caractristiques ou composantes
la
typiquement partages, soulignant
conscience subjective dans
la
dtermination des juridictions mixtes ;
(4) Une explication du concept de famille
juridique et de la classification des juridictions mixtes
en tant que troisime famille juridique distincte ;
(5) Une discussion des multiples faons par
lesquelles deux
juridiques peuvent se
mtisser. Le professeur Palmer conclut la Confrence
en argumentant quil nexiste pas de juridiction mixte
paradigmatique. Lexprience unique du Qubec lui
permet dillustrer cette proposition.
le rle de
lidentification et
traditions
* Thomas Pickles Professor of Law and Co-Director of the Eason-Weinmann Center of Comparative
Law, Tulane University.
Vernon Valentine Palmer 2009
To be cited as: (2009) 54 McGill L.J. 321
Mode de rfrence : (2009) 54 R.D. McGill 321
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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Introduction
I. A Brief History of an Idea: The Age of Discovery
II. The Classical Mixed Systems
A. The Relevance of Pluralism
B. Founding Moments: Begetting the Mixed Jurisdictions
C. Typical Features of Classical Mixed Jurisdictions
III. Is There a Family of Mixed Systems?
IV. The Many Ways and Styles of Being Mixed
Conclusion
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2009]
[T]he law we live under is as compound as the
atmosphere in which we breathe.
Edward Wynne1
Introduction
Dean Kasirer, members of the faculty, distinguished guests, mesdames et
messieurs:
In 2008, we have several milestones to celebrate. This is the four-hundredth year
since the founding of the city of Quebec in 1608 and the arrival of the first traces of
French law in Canada. This year also marks the two-hundredth anniversary of the first
European-style code in the Americas, the Louisiana Civil Code of 1808, which was
celebrated by an international colloquium at Tulane University in November 2008.
There is another milestone that we might celebrate as well: 2008 is approximately the
three-hundredth anniversary of the intertwined relationship between Quebec and
Louisiana in lAmrique septentrionale.
Our histories are quite connected and parallel. The original founders of Louisiana
were two brothers born in Quebec; our language, culture, mores, and laws were
French as well. Quebecs and Louisianas first laws were the Coutume de Paris and
the royal ordinances. Our first governmental institution was the Conseil suprieur.
We each owe vast intellectual debts to the Code Napolon and to the great
institutional writers of France, such as Domat, Pothier, and Dumoulin. Yet these ties
run deeper than reverence for a common civilian heritage. It is perhaps more
impressive
legal systems sustained fundamental
transformations, and yet our modern laws are still mutually intelligible and still bear
basic resemblance. More than two centuries ago, when the British army prevailed on
the Plains of Abraham, New France became British and Louisiana was passed to
Spain and thereafter it was sold to the United States. In the inevitable legal
adjustment to Anglo-American rule, we both acquired mixed laws for reasons that
were neither accidental nor gratuitous on anyones part. Throughout the subsequent
years we have independently struggled to accommodate these mixed laws in our own
ways, living the singularity of the mixed-jurisdiction experience at a distance. To be
sure, we have periodically cast a glance at each other, north and south, to see how the
other has been faring and coping over the years. Louisianas legal evolution has not
always been seen a positive example, but it has certainly been an example for
Quebec. As Justice Mignault famously said in 1922: Noublions pas le cas de la
that our original
to find
1 Edward Wynne, Eunomus: Or, Dialogues Concerning the Law and Constitution of England. With
an Essay on Dialogue (London: n.p., 1768) vol. 1 at 186, cited in Sen Patrick Donlan, Our Laws
Are as Mixed as Our Language: Commentaries on the Laws of England and Ireland, online: (2008)
12:1 E.J.C.L. 6
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Louisiane.2 One might say our experience and our fortunes as mixed systems are
different yet kindred, and our relationship as sister systems has been comme un
voyage ensemble dans tous ces aspects amicaux culturels et juridiques.
I hope you will agree that my subject has an appropriate ring in these halls, and
not simply because this faculty has an abiding interest in comparative law, or because
Quebec is indeed one of the systems I shall be speaking about. Rather, I hope to show
that my subject is intimately connected to the history of this law school. As an
intellectual matter, mixed jurisdictions were conceived and baptized at McGill before
they were presented to the world.
Tonight I am honoured to have this opportunity to speak discursively about
mixed jurisdictions, and I hope to offer a series of reflections with some special
reference to Quebec. I plan to cover five aspects of the subject. Firstly, I wish to
explore the historical origins, sources of inspiration, and precise meaning of the
peculiar expression mixed jurisdictions. This history reveals the prominent role
played by two cosmopolitan deans of your faculty about a century ago who had broad
interest and experience in the mixed laws of Scotland, Quebec, Ceylon, and Egypt. In
particular, the writings of Robert Warden Lee indicate that the expression is derived
from the international mixed courts of Egypt, which were once called mixed
jurisidictions. Secondly, I would like to discuss and compare a rival theory of mixed
legal systems that is far broader than the classical theory developed by these early
comparatists. This contrasting theory uses a factual test to identify mixed systems,
and has been influenced by legal pluralism. I will explain why the rival theory should
not be discounted, but rather should be regarded as a highly relevant and useful
addition to mixed jurisdiction studies. Thirdly, I will attempt to describe some of the
salient characteristics of the mixed jurisdictions, particularly the effects that flow
from fundamental bijurality. Fourthly, I will consider whether the mixed jurisdictions
may be described as a third legal family and what commonalities and traits may lead
to that conclusion. Fifthly and finally, I will consider the ways and styles of being
mixed, arguing that there is no single paradigm even within the restricted group. I
argue that Quebecs concern for the purity of its sources of law, its reverence for
French law, and its strong institutional arrangements are not, in the final analysis, the
preconditions of surviving as a mixed jurisdiction. They are factors that have created
an exceptional personality and style, setting her apart from her sisters within the third
legal family.
I. A Brief History of an Idea: The Age of Discovery
I would like to begin with the puzzling words mixed jurisdictions. It would be
interesting to know where this expression originated and what it actually means. The
words certainly sound arbitrary and vague, perhaps even pejorative in tone. Would
2 P.-B. Mignault, Lavenir de notre droit civil (1922) 1 R. du D. 104 at 116.
325
V.V. PALMER QUEBEC AND THE THIRD LEGAL FAMILY
2009]
most people not, if they were asked, prefer to say they live in a pure jurisdiction?
The label means absolutely nothing to the average man or woman in the street or, for
that matter, the vast majority of lawyers. Of course, lawyers know there is nothing
new in arbitrary words. Is the common law not one of the strangest and most
confusing terms of all? I am told that even the Common laws gender is ambiguous
and vigorously disputed! Yet I suggest that there is a precise historical reality behind
the origin and meaning of the expression mixed jurisdictions. Only by reviving the
historical context can we explain how words that usually referred to the power of a
court (its jurisdiction or right to speak) became a tool of classification and the
designation of a group of legal systems dispersed around the world. This requires us
to go back about one hundred years.
The discovery and promotion of the classical mixed systems must be credited to
the work of four or five scholars.3 These were F.P. Walton,4 R.W. Lee,5 M.S. Amos,6
F.H. Lawson,7 and somewhat later T. B. Smith, all of whom were remarkable
comparative law scholars. As early as 1900, Walton was at work bringing to the
worlds attention the existence of a group of systems whose private law was a
Western hybrid of common law and civil law elements. He was soon to be followed
by Lee and the others. Their contribution, which was novel at the time, was to survey,
analyze, and, to some extent, extol those legal systems that straddled or combined the
two laws. From the beginning, Quebec was viewed as a prime example of this
phenomenon.
Frederick Parker Walton was born in England in 1858, studied classics at Oxford
and then Scots law at Edinburgh, where he received an LL.B. before being called to
the bar in 1886. He thereafter lectured in Glasgow on Roman law, wrote several
treatises on Scots matrimonial law, and in 1897 accepted a call from McGill to
become the dean and professor of Roman law. He was the dean for seventeen years,
publishing a considerable number of books and articles in which he showed a deep
interest in the Quebec legal system.8 From McGill he moved to Cairo to become the
3 The history of this subject was first traced in Kenneth G.C. Reids Eason-Weinmann Lecture: The
Idea of Mixed Legal Systems (2003) 78 Tul. L. Rev. 5. My remarks are greatly indebted to his
lecture.
4 H.C.G. Matthew & Brian Harrison, eds., Oxford Dictionary of National Biography (Oxford:
Oxford University Press, 2004), vol. 57, s.v. Walton, Frederick Parker (18581948).
5 Ibid. vol. 33, s.v. Lee, Robert Warden (18681958).
6 Ibid. vol. 2, s.v. Amos, Sir (Percy) Maurice McLardie Sheldon (18721940).
7 Ibid. vol. 32, s.v. Lawson, Frederick Henry [Harry] (18971983).
8 Waltons most important works were: Historical Introduction to the Roman Law, 3d ed.
(Edinburgh: W. Green & Son, 1916); The Scope and Interpretation of the Civil Code of Lower
Canada (Toronto: Butterworths, 1980); Introduction to French Law (with Amos, infra note 29); The
Egyptian Law of Obligations: A Comparative Study with Special Reference to the French and English
Law, 2d ed. (London: Stevens and Sons, 1923) [Walton, The Egyptian Law of Obligations]; The
Civil Law and the Common Law in Canada (1899) 11 Jurid. Rev. 282; The Legal System of
Quebec (1913) 13 Colum. L. Rev. 213; The Law of Torts in the Province of Quebec (1938) 20 J.
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director of the Khedivian School of Law (19151923), publishing in 1920 a treatise
on the Egyptian law of obligations.9 He returned in retirement to England, living in
Oxford and continuing to publish. In 1932 he moved to Edinburgh, where he died in
1948.10
In his earliest article on the subject, Walton compared Quebec to Louisiana and
Scotland and concluded that these jurisdictions occup[y] a position midway between
the Common law and the Civil law.11 He estimated that Scotland could no longer be
classified as a civil law country, though it may have been in earlier centuries. It had
accepted English mercantile law, the doctrine of stare decisis, and a mass of
legislation applicable to both England and Scotland. He pictured Quebec in much the
same position as Scotland: Quebec displayed a strong tendency to accept the doctrine
of stare decisis, its mercantile law was almost wholly English,12 half of its rules of
procedure were English, and the provincial courts administering French law
possessed the inherent (non-delegated) powers of an English court. These juxtaposed
English elements made Quebec a peculiar and separate legal system.13
Robert Warden Lee held to similar ideas and disseminated them in leading
journals. He was born in Wales in 1868, studied classics at Oxford (188991), and
thereafter served three years in Ceylon as a local magistrate. The Ceylonese
experience awakened a lifelong interest in Roman-Dutch law, of which he became the
acknowledged master. Returning to London for health reasons, he assumed the chair
of Roman-Dutch law at London University. In 1914 he received a call from McGill,
stepping directly into Waltons shoes as dean and professor of Roman law. Much as
his predecessor had done, he wrote articles about the nature of Quebec civil law and
its place among world legal systems. He stayed seven years at McGill before taking
up the chair of Roman-Dutch law at Oxford, which he did not relinquish until shortly
before his death in 1958.14
In his first year at McGill, Lee published an article in the Michigan Law Review
entitled The Civil Law and the Common LawA World Survey.15 On the first page
Comp. Leg. & Int. Law (3d) 296; Quebec (Province), The Workmens Compensation Act, 1909, of the
Province of Quebec, with a commentary by Frederick Parker Walton (Montreal: J. Lowell, 1910); The
New Laws of Employers Liability in England and France and Their Bearing on the Law of the
Province of Quebec (Lecture delivered to the Junior Bar Association of Montreal, 1900) (Montreal: C.
Thoret, 1900).
9 Walton, The Egyptian Law of Obligations, ibid.
10 See supra note 4.
11 Walton, The Civil Law and the Common Law in Canada, supra note 8 at 291.
12 Walton stated that In commercial matters … it is safe to affirm that a gradual assimilation of the
law of Quebec to that of the rest of Canada has long been going on and is now fairly complete (The
Legal System of Quebec, supra note 8 at 225). However, he prefaced his opinion with heavy
qualification.
13 Walton, The Legal System of Quebec, supra note 8 at 215.
14 For further details, see Matthew & Harrison, supra note 5.
15 (1915) 14 Mich. L. Rev. 89.
V.V. PALMER QUEBEC AND THE THIRD LEGAL FAMILY
2009]
of his work he displayed a rather primitive map of the world which was brought to
my attention by Kenneth Reid in his Eason-Weinmann Lecture at Tulane.16 Dean Lee
explained its purpose:
327
We have seen maps of the world constructed from every point of view.
There are geological maps, ethnographical maps, missionary maps. But I have
not, to my recollection, seen a legal map. I should like to have a Mappa Mundi
which would show what legal systems prevail and where. It would be a
valuable aid to the study of Comparative Law.17
Below is his map, partly written in his own hand, with his initials showing in the right
hand corner.
Figure 1: The Civil Law and the Common LawA World Survey
Of course, the focus of the map is entirely Eurocentric and heady of empire. The
solid black areas denote the domains of the common law while the dotted white areas
denote the kingdoms of the civil law. There are only two other things left for the eye
to take in: (1) the horizontally striped mixed jurisdictions, and (2) the vast, blank
expanseswhite spaces with no designation whatsoeverwhich include places such
as Saudi Arabia, China, Iraq, and Iran.
16 Reid, The Idea of Mixed Legal Systems, supra note 3.
17 Supra note 15 at 90-91.
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This map was intended to present something dramatically new to the reader and
that novelty was surely not that most of Canada and the United States employs the
common law. Its real purpose, as the whole article demonstrates, was to give a survey
of the points of interaction between the civil and the common law worlds. It was the
first graphic representation of the dispersed fields of this interaction. It included
jurisdictions from North America (Quebec and Louisiana); South America (British
Guiana); Europe (Scotland); Africa (South Africa, Egypt, and Sudan); and Asia
(Ceylon). Lee said that his purpose was to assess on a worldwide basis how the civil
law had been affected by the ceaseless intrusions of the common law.18 For more
than a century past, he wrote, the Civil Law has been on the defensive. It is the
Common Law that has been the active aggressor. I shall speak principally of the
struggle between the two systems in some of the British Colonies. But the same
tendencies, I believe, may be detected in other Civil Law jurisdictions, such as the
State of Louisiana and the Philippines.19 Thus he regarded the mixed jurisdictions as
the battlegrounds of far-reaching struggle. The experience and the evolution of those
jurisdictions would serve as the barometer of war. Every example he used, whether it
showed assimilation, capitulation, or resistance, came from the mixed jurisdictions.
Quebec was referred to no fewer than nine times, South Africa no fewer than seven
times, and Guiana and Ceylon were repeatedly cited as well.20
It is well to remember that this outlook represents a British comparatists
viewpoint on the world. We have no alternative or competing map by a civilian
comparatist from this time period to tell us what he or she might have considered a
mixed jurisdiction or what barometer of the struggle should have been employed.
Let me now come to a curious fact. The words mixed jurisdiction appear only
in the legend of his map, never in the text of the article. So there is this mystery:
where did Lee obtain this unusual expression? The answer is unclear, but my research
at least permits this conjecture. As mentioned, he was a classics scholar and a Roman
law professor. Since ancient times, there was a very old type of tribunal that decided
disputes between citizens and aliens. Both ancient Greece and classical Rome had
special tribunals sometimes referred to as mixed jurisdictions to regulate
controversies between parties with different personal laws.21 Lee would not only have
known his ancient law, but he would also have been aware that Egypt had a world-
famous international court performing the same function in his own day. And this
court frequently described itself as a mixed jurisdiction.22
18 Ibid.
19 Ibid. [references omitted].
20 Lee employed a wealth of examples from each jurisdiction because he systematically reviewed
five areas of private law: Persons, Property, Obligations (Contract and Delict), Successions, and
Procedure. I note here that Egypt is only mentioned in passing, and no example is taken from its law.
21 See e.g. Pan. J. Zepos, Mixed Jurisdiction in Greece (1974) 22 Am. J. Comp. L. 221.
22 See e.g. Bencini and Quistas v. The Egyptian Government and the Government of Soudan, (1910)
4 Am. J. Intl L. 745 at 746.
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2009]
Thus Lees inspiration may lie in the centre of the map, in Egypt and Sudan,
which he depicted as mixed jurisdictions. It is not clear, however, on what basis Lee
made that judgment. Egypt had been under British occupation since 1882, and upon
the outbreak of World War I, it formally became a protectorate of the British
Empire.23 Arguably, some anglicization of the Egyptian legal system was taking
place, but it would have been occurring rather subtly and in small doses, as in the
British-led reform of the penal system, or in the influence of British judges serving on
the Egyptian bench.24 Egypt does not at first glance, however, appear to have been a
battleground in the struggle between the two traditions. Of course, the presence of
British governance alone may have contributed to the impression of an existing
process of anglicization, or one that would exist if that governance extended for
generations into the future. It was then a form of indirect rule, with the controlling
institutions in British hands and moulded on English lines. Aside from that
dimension, however, there was no clear strategy, nor any particular attempt to replace
French law with English law, nor any sign of a desire to replace the Islamic law
administered in the religious courts.25
Shortly before the advent of British rule, Egypt had adopted a panoply of six
codes based on French models, including a civil code and a commercial code. By this
bold stroke, Egypt entered into the extended family of French legal systems.26 The
French-based national codes applied in the national courts in suits between Egyptian
citizens, though not in the personal law areas governed by sharia (family law and
successions).27 These codes were also applied to Egyptians and non-citizens in the
international mixed tribunals in Cairo and Alexandria. The international courts
resolved disputes of a civil or commercial nature arising between Egyptian nationals
and foreign nationals, and those between foreign nationals. Henry Goudy explicitly
compared their function to the court of the Peregrine Praetor in ancient Rome.28 The
courts composition was a combination of Egyptian and foreign judges, including
American and British appointees.29 I have already noted that the Mixed Court was
frequently called the mixed jurisdiction (a conflation of the courts competence and
the institution itself). It appears likely to me, though I have no direct evidence, that
23 Lord Milner described Egypt in earlier years of occupation as a veiled protectorate (Alfred
Milner, England in Egypt, 6th ed. (London: Edward Arnold, 1899) at 24ff.).
24 Jan Goldberg argues that penal reform was an area where the British did succeed in conforming
the Egyptian system to their own (Rception du droit franais sous les britanniques en gypte : un
paradoxe?, trans. by Natalie Bernard-Maugiron (1998) 34 gypte/Monde arabe 67 at para. 7).
25 Ibid.
26 Ibid.
27 See Sir Maurice Amos, The Code Napolon and the Modern World (1928) 10 J. Comp. Leg. &
Int. Law (3d) 222 at 235.
28 H. Goudy, Administration of Justice in Egypt (1907) 23 Law Q. Rev. 409 at 417-418.
29 Goudy mentions that two English judges were members of the Court of Appeal in 1907 and that
the Procureur gnral was English as well (ibid.).
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Lee seized upon this name as a means of describing any system where common law
and civil law coexisted.
This theory is in part persuasive to me because Egypt was a rendezvous point for
the personalities involved in this story. Walton and a third English scholar now
entering the scene, Sir Maurice Sheldon Amos, were deeply involved in Egypts
French/Islamic/British legal system. And Lee was keeping track of events there from
afar.30 Called to the English bar in 1897 (Inner Temple), Amos went to Cairo to serve
as a local magistrate in the ordinary courts in 1903.31 Fluent in Arabic and French, he
was soon elevated to the Egyptian Court of Appeal (19061912). Amos then became
director of the Khedival School of Law from 1913 to 1915 (Walton was his
successor), and later became the judicial adviser (essentially minister of justice) to the
Egyptian government from 1917 to 1925. Thus for over a quarter century Amos
worked within the main institutions of justice in that country. He returned to England
to practise law, and in 1932 he was appointed professor of comparative law and
historical jurisprudence at University College London. His close association with
Walton in Cairo bore fruit in a notable book in 1935: Introduction to French Law.32 In
1936, Amos published an article in the Harvard Law Review that surveyed all British
possessions in which the common law and the civil law were combined. It was
actually a panoramic account of the mixed jurisdictions, though that term was not
used in the text.33
It is relatively clear that these cosmopolitan scholars, with their feet diversely
planted in Montreal, Cairo, Edinburgh, and Colombo, led the pre-campaign for wider
recognition of these interesting systems. They were the intellectual predecessors of
Sir Thomas Smith, the Scottish-born, Oxford-trained figure who popularized the
study of mixed jurisdictions. I should quickly add one other figure to this list: F.H.
Lawson, Smiths mentor at Oxford. Lawson had a deep knowledge of Scots law and
saw value in the study of mixed systems.34 In his inaugural address as holder of the
chair of comparative law at Oxford, Lawson called attention to a most interesting
group of laws, which, because they display the influence of English law on a body of
doctrine already profoundly romanized, stand between the common and the civil law
systems.35 He concluded his remarks about the mixed jurisdictions by saying, I
30 In 1918, for example, Lee began his article in the Yale Law Journal with a quote from the judicial
adviser to the sultan of Egypt: R.W. Lee, Torts and Delicts (19171918) 27 Yale L.J. 721.
31 See supra note 6.
32 Sir Maurice Sheldon Amos and Frederick Parker Walton, Introduction to French Law (Oxford:
Oxford University Press, 1935).
33 Maurice Sheldon Amos, The Common Law and the Civil Law in the British Commonwealth of
Nations (193637) 50 Harv. L. Rev. 1249.
34 Lawson had certain ties to Scotland. His wife was Scottish, and he had once sought a chair at
Edinburgh. Smith rated him as first among a mere handful of English jurists who had attained a deep
knowledge of Scots law. See Matthew & Harrison, supra note 4, vol. 32, s.v. Lawson, Frederick
Henry [Harry] (18971983).
35 F.H. Lawson, The Field of Comparative Law (1949) 61 Jurid. Rev. 16 at 26.
331
V.V. PALMER QUEBEC AND THE THIRD LEGAL FAMILY
2009]
have spoken at length about these hybrid laws because I regard them as peculiarly
favourable fields for comparative work in an English university.36
In 1963, Smith picked up the rather empty term mixed jurisdictions and
employed it in a historically restricted sense to signify legal systems in which
common law and civil law elements in the private law interacted and vied for
supremacy. He introduced the term into the title of an essay, the first author ever to do
so, and he ventured a fairly weak definition. He deemed a mixed jurisdiction to be a
basically civilian system [that] has been under pressure from the Anglo-American
common law and has in part been overlaid by that rival system of jurisprudence.37
Obviously he regarded his native Scotland as a paradigm of a mixed jurisdiction, but
he never mentioned Egypt as being in the group.38 At first he carefully placed the term
in quotation marks, and for literary variation he occasionally substituted the words
mixed system, but this did not change the countries to which he was referring. This
step occurred during an extensive international campaign in which Smith wrote a
great deal on the subject and made extended visits to Louisiana, South Africa, and
Quebec. He invited colleagues from those places back to Edinburgh on teaching
visits.
Within a few years, scholars from Quebec, Louisiana, and Scotland, such as Jean-
Louis Baudouin, Joseph Dainow, Judge Albert Tate, and David Walker, had embraced
this terminology and apparently subscribed to Smiths basic definition. In the Bailey
Lecture at Louisiana State University in 1972, Professor Baudouin entitled his
remarks The Future of Civil Law in a Mixed Jurisdiction; and Professor Dainow, a
transplanted Canadian on the LSU Faculty of Law, edited a 1974 collection entitled
The Role of Judicial Decisions and Doctrine in Civil Law and in Mixed
Jurisdictions, which licensed the contributors to that volume to use the term
repeatedly.39
The term firmly became part of comparative law grammar only after Smith
published in the International Encyclopedia of Comparative Law an entry
straightforwardly entitled Mixed Jurisdictions. The entry opens with these words:
The mixed or hybrid jurisdictions with which this subchapter is
concerned are those in which civil law and common law doctrines have been
received and indeed contend for supremacy. Other hybrid systems where, for
36 Ibid. at 29.
37 T.B. Smith, The Preservation of the Civilian Tradition in Mixed Jurisdictions in Athanassios
N. Yiannopoulos, ed., Civil Law in the Modern World (Kingsport, Tenn.: Louisiana State University
Press, 1965) 3 at 5. This section of my paper relies heavily on an earlier paper that was presented in
Edinburgh at the Second Worldwide Congress on Mixed Jurisdictions in June 2007: Vernon Valentine
Palmer, Two Rival Theories of Mixed Legal Systems, online: (2008) 12:1 E.J.C.L.
38 As to why Smith did not include Egypt, see infra notes 47 and 48 and accompanying text.
39 Joseph Dainow, ed., The Role of Judicial Decisions and Doctrine in Civil Law and in Mixed
Jurisdictions (Baton Rouge: Louisiana State University Press, 1974).
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example, customary law or religious law coexists with Western type law are not
considered.40
The meaning Smith assigned to the term was historically determined. It was
transparent to only a coterie of comparative lawyers (perhaps only to those in the
Anglo-American wing of comparative law) and its future could easily be contested, as
it is today. It was vulnerable to a more inclusive theory of mixed legal systems offered
by different comparatists, such as the French, and more particularly by the theory
fostered by legal pluralism. It is to this theory I will now turn.
II. The Classical Mixed Systems
A. The Relevance of Pluralism
Increasingly, comparative law has been influenced by the insights of legal
pluralism. Pluralists tend to study post-colonial societies in Africa and Asia in which
various personal laws coexist and interact with Western law as continuing effects of
legal history.41 I have commented elsewhere that A more liberal conception of the
mixed legal system necessarily follows from [the pluralists] broader pursuit of legal
phenomena, as when they study not only customary law, tribal law, and religious law
recognized by the state, but also the unrecognized and unofficial laws which escape
state control and constitute the living law.42 One contribution of this research is the
empirical emphasis it brings to the subject of mixed systems.
40 T.B. Smith, Mixed Jurisdictions in K. Zweigert and K. Drobnig, eds., International
Encyclopedia of Comparative Law (The Hague: Martinus Nijhoff, 1976) vol. 6 at para. 2-228.
41 For purposes of this discussion, personal law may be regarded as a subset of private law, a
restricted list of topics (perhaps the most culturally determined legal areas) within the larger area of
private law. In this sense personal law may signify an ethnic enclave or niche in the midst of official
law. For example, the topics of Jewish personal law recognized in India only relate to successions and
marriage/divorce, whereas Hindu personal law in India has a somewhat broader coverage
(successions, marriage/divorce, guardianship, adoption, joint family and partition, and religious
institutions) thought it by no means fills the entire field of private law. The topics of Muslim personal
law in India have similar scope. See Christa Rautenbach, Phenomenon of Personal Laws in India:
Some Lessons for South Africa (2006) 39 Comp. & Intl L.J.S. Afr. 241 at 244.
42 Vernon Valentine Palmer, Two Rival Theories of Mixed Legal Systems, supra note 37. For an
account of the methods and goals of legal pluralism, see John Griffiths, What is Legal Pluralism?
(1986) 24 J. Legal Pluralism 1; Masaji Chiba, Legal Cultures in Human Society (Tokyo: Shinzansha
International, 2002) at 182; Werner Menski, Comparative Law in a Global Context: The Legal
Systems of Asia and Africa, 2d ed. (Cambridge: Cambridge University Press, 2006) at 115-116; M.B.
Hooker, Legal Pluralism: An Introduction to Colonial and Neo-colonial Laws (Oxford: Clarendon
Press, 1975); T.W. Bennett, Comparative Law and African Customary Law in Mathias Reimann and
Reinhard Zimmermann, eds., The Oxford Handbook of Comparative Law (Oxford: Oxford University
Press, 2006) 641 at 666-671; G.J. van Niekerk, Legal Pluralism in J.C. Bekker, C. Rautenbach and
N.M.I. Goolam, eds., Introduction to Legal Pluralism in South Africa, 2d ed. (Durban: LexisNexis
Butterworths, 2006) at 5-14.
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By any factual test, nearly all the peoples of the world could be regarded as
having mixed legal systems. It is nearly impossible to find a system, in todays world
at least, that could claim to be purely indigenous and endowed entirely of original
laws. To legal anthropologists and legal pluralists, the principal criterion of a mixed
system is simply the presence or interaction of two or more kinds of laws or legal
traditions within the same social field. The mixed nature of a legal order can be
discovered and confirmed in an objective manner by research and observation. Any
interaction between laws of a different type or sourceindigenous with received,
religious with customary, Western with non-Westernis sufficient to constitute a
mixed legal system. The extremely inclusive nature of this definition has not posed a
deterrent to its growing use. The characterization mixed does not restrict itself to
any specific kind of mixture (it may be customary/religious/Eastern/Western). It does
not depend upon an analysis of legal styles within a mix, nor does it require
subjective judgments regarding the predominance of one tradition over another within
the mixture, for example.43 Neither does this characterization depend upon the
perception of legal actors, nor upon endogenous descriptions of the nature of the legal
system. A mixture is just a verifiable fact, independent of all other considerations.
Pluralist methodologies tend to undercut facile assumptions about pure
common law or civil law systems and they certainly mount a challenge to the
conventional taxonomy of comparative law. The map prepared by the University of
Ottawa, shown below, has been clearly influenced by pluralism.44
43 Under the influence of pluralism, it is not at all uncommon to find it said that Iran, Syria, and
Indonesia are mixed systems. rc, Attwooll and Coyle present an eclectic list of systems they
regard as mixed, including Australia, Algeria, and the European Union (Esin rc, Elspeth Attwooll
& Sean Coyle, eds., Studies in Legal Systems: Mixed and Mixing (The Hague: Kluwer Law
International, 1996)).
44 The map is found at University of Ottawa, Faculty of law (Civil law section), JuriGlobeGroupe
de recherche sur les systmes juridiques dans le monde, online:
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It will be noticed that the maps pluralist perspective allows more hybrids than usual,
and yet it still omits many. The map makes a partial bow to the hybrids but an even
deeper bow to the common law/civil law axis, which is its central organizing
principle. To be sure, the map-maker had a dilemma. Pluralism has yet to present a
taxonomy that differentiates and arranges the hybrids into useful groupings. Pluralism
emphasizes the need to reshuffle the cards of classification, but has not said how, or
if, they can be reorganized in a coherent way.
Now debates about classification are said to be a good cure for insomnia, but
ultimately this issue of taxonomy is an important scientific question. The mixed
jurisdictions must be particularly alive to this issue since they have always languished
in what Jacques du Plessis describes as classificatory limbo.45 We might well recall
the words of our late colleague Peter Birks, who said, Darwin would have achieved
nothing if he had neglected taxonomy. In the same way poor classification disfigures
the law and delays the progress of legal science.46 In my view, the rational
classification of hybrids is the next daunting task of comparative law. If it is not too
much to claim, the cross-comparative study of mixed jurisdictions such as Quebec
and her siblings has been a step that illustrates the way forward. Just as the mixed
jurisdictions were not discovered in an armchair, so too the rational grouping of
hybrids will depend upon detailed studies of commonalities and differences, traits and
tendencies. With that end in mind, let me mention three reasons why the value of a
pluralist/factual approach can scarcely be doubted.
Firstly, a pluralist approach provides an objective means of identifying
comparable objects of study. As we saw earlier in the case of Egypt, a fact-sensitive
approach is vital in uncovering otherwise-overlooked examples of common law/civil
law mixing. In the first quarter of the twentieth century, Walton and Lee perceived
that British-administered Egypt was a country in which English, French, and Islamic
law were interacting on the ground.47 However, by the 1960s, an entirely different
45 Jacques du Plessis, Mixed Legal Systems, Especially the South African Legal System, and the
Study of Comparative Law, Editorial, online: (2005) 9:3 E.J.C.L.
46 Peter B.H. Birks, More Logic and Less Experience: The Difference between Scots Law and
English Law in David L. Carey Miller & Reinhard Zimmermann, eds., The Civilian Tradition and
Scots Law: Aberdeen Quincentenary Essays (Berlin: Duncker & Humblot, 1997) 167 at 171.
47 Thus Amos description:
Egypt offers an example of the reception of French law by a people totally alien to
Europe in language, religion, and social and political traditions. When, fifty years ago,
Nubar Pasha secured the consent of the Powers to the institution of the International
Courts, it was agreed without debate that the only possible law with which to equip
them was that of the French Codes. Eight years later, the year after the British
Occupation, the French Codes were extended to the newly reorganized native
jurisdictions, and this became the law governing all civil causes in Egypt excepting
those relating to the family and personal status. The inevitable consequences followed;
and after forty years of the British Occupation, British officials were administering
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picture presented itself to the later comparatists. As of 1937, all British troops were
gone and the mixed tribunals were closed. Certainly by the time of the proclamation
of the republic in 1953, British influence over Egyptian affairs had decreased
drastically. The earlier classification of Egypt as a mixed jurisdiction (in the
restricted, classical sense) was revised, and it was not insisted upon again by Smith or
other British comparatists of his generation. This revised assessment demonstrates the
value of an inductive approach to mixed jurisdiction studies. Even today, we must not
simply assume that we have uncovered all of the jurisdictions of this genre. The list
may change as we continue to assess evolving circumstances.48
Secondly, a pluralist approach to the study of hybrid systems provides an
important safeguard against an ethnocentric account of comparative law. It tends to
respect all the legal elements in a social field, including non-Western subsystems that
some investigations might omit or downplay. Even a researcher primarily interested
in the interaction of the common law and the civil law will gain new insight from
studying the interaction of Western law with customary laws, personal statutes, and
Aboriginal laws. In some mixed jurisdictions these subsystems are, demographically
speaking, more important than the Western elements, whereas in others they may
represent a small percentage of the population. Quebec, for example, has eleven
distinct nations of Aboriginal peoples within its borders. Their laws might be called
Canada and Quebecs third legal tradition.49 The vast territory of Nunavik, which is
one of four regions in Inuit Nunaat (Inuit homeland) and which is home to about
ten thousand Inuit, comprises about one-third of Quebecs territory.50 Yet research and
reference to these laws, though they undoubtedly constitute part of Quebecs legal
system, has only recently appeared in the legal literature.51
French law in Arabic, teaching French law in English, and arguing French law in
French (Sir Maurice Amos, The Code Napolon and the Modern World, supra note
27 at 235).
48 Thailand is an interesting and lesser known example. See Noppramart Prasitmonthon, A
Comparative Legal Study Between the Common Law and the Civil Legal Tradition of Thailand
online:
example. See Symeon C. Symeonides, The Mixed Legal System of the Republic of Cyprus (2003)
78 Tul. L. Rev. 441. Kenneth Reid has pointed out that the Channel Islands, Malta, and Cyprus are
mixed jurisdictions (supra note 3 at 7, n.1).
49 Aline Grenon, Setting the Stage: Comparative Law in Canada at the Dawn of the 21st Century
in Aline Grenon & Louise Blanger-Hardy, eds., Elements of Quebec Civil Law: A Comparison with
the Common Law of Canada (Toronto: Thomson Carswell, 2008) 1 at 13, n. 29.
50 Statistics Canada, Aboriginal Peoples in Canada in 2006: Inuit, Mtis and First Nations, 2006
Census (Ottawa: Minister of Industry, 2008) at 21-22.
51 See e.g. Andre Lajoie et al., Le statut juridique des peuples autochtones au Qubec et le
pluralisme (Cowansville, Qc.: Yvon Blais, 1996); Ghislain Otis, Les sources des droits ancestraux
des peuples autochtones (1999) 40 C. de D. 591; John Borrows, With or Without You: First Nations
Law (in Canada) (1996) 41 McGill L.J. 629; H. Patrick Glenn, Legal Traditions of the World, 3d ed.
(Oxford: Oxford University Press, 2000); Law Commission of Canada, ed., Indigenous Legal
Traditions (Vancouver: University of British Columbia Press, 2007); Bjarne Melkevik & Ghislain
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Thirdly, pluralist methodology guides us to the common denominator of most
hybrid systems: the internal struggle to maintain personal law. The urgent efforts of
eighteenth-century French Canadians to keep their civil law rather than accept an
imposed, foreign law is well knowna subject to which I shall returnbut so are the
efforts by the peoples of Africa and Asia to retain their indigenous laws and customs.
They have usually done so by accepting mixed Western and personal law systems.
Any investigation of the Roman, Ottoman, and later European empires would reveal
that, both in their construction and collapse, they systematically spawned mixed
personal law/public law systems.52 Indeed, in a pluralist sense, those empires
themselves might be characterized as mixed systems.
B. Founding Moments: Begetting the Mixed Jurisdictions
I would now like to turn your attention more particularly to the classical mixed
jurisdictions and the circumstances of their birth. This group consists of roughly
fifteen or sixteen political entities, which, apart from Louisiana and Quebec, include
Scotland, South Africa, the Philippines, Puerto Rico, and Israel.53 The majority of
these entities became mixed jurisdictions during the colonial era. A continental power
like France or Spain would first found a colony and implant its own civil law system,
but in a second stage of history, this civilian colony was conquered, sold, or ceded
to a common law power, which proceeded to superimpose its own criminal law,
judicial institutions, procedural laws, and often commercial laws upon the existing
civil law. In South Africa, the British superimposed this common law layer not only
upon the Roman-Dutch law of the Dutch settlers, but also upon the laws and customs
of the various indigenous African nations that inhabited the land. This was the
colonial pattern, but certainly not all mixed jurisdictions were created in this way.
Scotland, for example, the oldest in the family, was never a colony. While an
independent country, it received Romanist civil law from the Continent during the
sixteenth and seventeenth centuries. But at the same time (or even before), it received
much common law influence through close contact with its large neighbour, England,
and finally signed the Treaty of Union with England in 1707, which opened new
avenues for further common law influence. Israel, for a contrary example, arrived at
bijurality quite differently. After World War II, Israel was considered mainly a
common law system, but a legal elite dominated by Jewish immigrants trained in
central Europe successfully superimposed civil law and displaced private common
Otis, eds., Peuples autochtones et normes internationales : analyse et textes relatifs au rgime de
protection identitaire des peuples autochtones, (Cowansville, Qc.: Yvon Blais, 1996).
52 For treatment of the Roman and Ottoman empires as mixed systems, see Palmer, Two Rival
Theories of Mixed Legal Systems, supra note 37.
53 Seven more mixed jurisdictionsBotswana, Lesotho, Swaziland, Sri Lanka, Mauritius,
Seychelles, and Saint Luciaare briefly discussed in Vernon Valentine Palmer, Appendix B in
Vernon Valentine Palmer, ed., Mixed Jurisdictions Worldwide: The Third Legal Family (Cambridge:
Cambridge University Press, 2001) 471 at 479-84 [Palmer, Mixed Jurisdictions Worldwide]. As
already discussed, this list cannot be considered closed (supra note 48 and accompanying text).
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law, thus circumventing the order as well as the means by which mixed jurisdictions
have historically been founded.
Quebecs own history is a rich illustration of the collision of forces that may
occur at the founding of a mixed jurisdiction. In 1763, the population of Quebec was
about sixty-five thousand people, nearly all French speaking, Roman Catholic, and
deeply attached to French law.54 The English settlers comprised probably not more
than 5 per cent of the population, but this minority continually clamoured for the
prevalence of the English laws and English language.55 The British at first decided to
replace French law entirely (theoretically Parliament or the Crown had the unlimited
authority to impose British law in Quebec), or as Governor Murrays ordinance put it,
to render justice as near as may be agreeable to the Laws of England.56 But as this
audience knows better than I, for various reasons the complete implantation of
English common law failed to take root.
Firstly, there was apparently la fronde of the Qubcoisan opposition at ground
level. The British experienced non-cooperation, formal petitions, remonstrances,
boycotts of the courts, the use of private arbitration, and, above all, a spontaneous
resort to the old Coutume officiellement abolie, particularly with reference to matters
of successions, mortgages, dowry rights, and contracts of marriage.57 Secondly,
during this period British officials continually mentioned the practical obstacles
which this caused and advised the Crown to restore French law as a matter of
Britains own self-interest. Thirdly, an important military and geopolitical reason for
accepting this advice was at hand. Britain badly needed the loyalty and support of its
French Canadian subjects in case of invasion by the Americans and French. The
opposite policy, Walton wrote, would very likely have driven the Canadians into
the arms of the American revolutionaries.58 Thus a visceral attachment to French law
was eventually gratified by a relatively low-cost gesture. Governor Carleton wrote in
54 Hon. Jean-Louis Baudouin, Quebec (Report 2) in Palmer, ed., Mixed Jurisdictions Worldwide,
ibid., 347 at 348. Governor Murray reported that the 1765 census revealed some 69 000 inhabitants of
Quebec, a figure which did not include the Aboriginal population. Governor Murray claimed that the
Aboriginal inhabitants of the province numbered 7400 and that all were Roman Catholic. In all
likelihood, a number of Aboriginals who were not Roman Catholic were not included in the census
(Governor James Murray to Lord Shelburne, (20 August 1766), cited in Yves Landry, tude
critique du recensement du Canada de 1765 (1975) 29 Revue d’histoire de l’Amrique franaise
323 at 325-37).
55 See F.P. Walton, Book Review of Justice Under the Quebec Act, 1774 by Hilda M. Neatby,
(1938) 20 J. Comp. Leg. & Int. Law (3d) 294.
56 Andr Morel, La raction des Canadiens devant ladministration de la justice de 1764 1774 :
Une forme de rsistance passive (1960) 20 R. du B. 53 at 55.
57 See ibid. at 56. Morel found a conspicuous absence of court actions concerning affaires de
famille (ibid. at 60).
58 Walton, supra note 50 at 295.
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1768, I have found in Canada what I believe may be found everywhere, the People
fond of the Laws and Form of Government they have been educated under … .59
The circumstances in which the other mixed jurisdictions were founded may be
less suspenseful than Quebecs narrow escape from the full grip of English law, yet
the operative process of resistance, remonstration, and political calculation is fairly
common among hybrid systems. No people that I am aware of has ever willingly
given up its personal law and accepted a different personal law than its own.
Historically the struggle is quite old, and if it came to be expressed as a rule of
international law that the laws of a conquered country continue in force, until they
are altered by the conqueror,60 it was because international law recognized, indeed
was founded upon, political realism. Cultural tenacity and the sensible use of power
were the reality behind the rule. Esmein observed long ago that the policy of allowing
a subjugated people to retain their personal law is often not a matter of choice but a
kind of necessity to which the conqueror must submit: Cest, en effet, une ncessit
qui simpose au vainqueur de laisser aux vaincus leurs lois, toutes les fois que la
conqute juxtapose deux races trop diffrentes par … la forme de la civilisation.61
Quebecs experience testifies to the accuracy of this insight.
C. Typical Features of Classical Mixed Jurisdictions
Given the civilian tradition in this province, the speaker may be expected to give
a rigorous definition of the subject under discussion. I am afraid I may have to
disappoint you. In truth, there has never been a canonical definition of a mixed
jurisdiction or a mixed legal system. To this day, I do not think we fully understand
them, and for the reasons already explained, it might be quite difficult to come up
with a definition that all can agree to.62 Mixed jurisdiction studies are still in their
59 Morel, supra note 51 at 57. Cf. Lord Granvilles statement: On a appel prjug lattachement
des Canadiens leurs anciennes Coutumes quils prfraient aux lois anglaises. Je crois quun pareil
attachement mrite un autre nom car mes yeux, il est fond sur la raison ou mme encore sur les
sentiments les plus nobles du coeur humain (Louis Baudouin, Le Droit civil de la Province de
Qubec: Modle vivant de Droit compar (Montreal: Wilson et Lafleur, 1953) at 64).
60 Campbell v. Hall (1774), 1 Cowp. 204, 98 E.R. 1045 at 1047 (K.B.).
61 A. Esmein, Cours lmentaire dhistoire du droit franais : lusage des tudiants de premire
anne (Paris: Librairie de la socit du recueil Sirey, 1925) at 50. This explained for Esmein why
Germanic tribes, after the collapse of Rome, allowed the Romans to keep their own law. Similarly,
Guterman points out that Since the laws of the barbarians were tribal and, therefore, personal laws, it
would have been difficult to apply them to the conquered people without transforming the latter into
Germans (Simeon L. Guterman, The Principle of the Personality of Law in the Germanic Kingdoms
of Western Europe from the Fifth to the Eleventh Century (New York: Peter Lang, 1990) at 34-35).
62 Ignazio Castellucci has well posed the difficulty, that we need to decide whether a definition will
have the only surviving function of a name tag for a fixed list of items (however variable their actual
features might be in the future), rather than a category related to a fixed list of features, characterizing
a (variable) number of items (How Mixed Must a Mixed System Be?, online: (2008) 12:1 E.J.C.L.
4 at 3
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infancy, and perhaps best efforts should be directed to descriptive analysis of the
principal features and processes of these systems. Nevertheless, if asked for a
descriptive formulation, though recognizing it is unlikely to command assent, I would
say something as follows. A mixed jurisdiction, at least in the classical sense under
discussion, is a pluralist legal order consisting of two large collections of legal
materials which are joined at a porous seam: a private law drawn from civilian
tradition (but subject to infiltration by common law) and a public law drawn from the
common law tradition. The divergent components continuously interact at the level of
substantive rules, methodology, and ideology. This provisional and no doubt
incomplete63 description at least provides a framework within which we may discuss
the main traits and commonalities of this type of system.
Now, there are two broad implications in this formulation that I wish to bring
forward. The first is the special architecture of the legal edifice, and the second is the
notion of fundamental bijurality. As to the edifice, a kind of cultural divide runs down
the centre between private Continental law (possibly infiltrated) on the one hand, and
public Anglo-American/Canadian law on the other. This bifurcation is invariable in
the family of mixed jurisdictions. As to fundamental bijurality, I intend to say that the
confrontation between civil and common law is grand in scale, glaring, and fairly
balanced, creating a cultural impact that is frequently felt by legal actors and
observers inside the system (and not just its legal historians). Bijurality can be felt by
any number of the abrupt transitions experienced in daily legal life, whether it be a
mundane shift in classrooms at the faculty; a shift in cases before the court; the
necessity of changing from one language to another; or when we move from one
interpretative mode or drafting style under the Civil Code to that of an ordinary
statute.64 This condition came about not as the result of legal transplants, at least not
in
law. Quebecs highly
compartmentalized bijurality, for example, cannot be achieved by some gradual
process of minor borrowing or even a series of legal exchanges between a dominant
and a servient tradition. There is something in the coherent magnitude of this
juxtaposition that makes it a characteristic unto itself. Bijurality is the prevailing
stamp of such systems, and its presence is obvious to any practitioner, teacher, law
dean, merchant, or ordinary observer. It can foster factions, jar legal sensibilities,
divide faculties, create double identities, and stir up a self-regarding polemical
the usual sense of
that
term
in comparative
63 For the common laws impact upon commercial law, procedure, stare decisis, and the alignment
of jurists, see infra Part III; for a discussion of the second reception of common law, see infra Part IV.
64 These transitions are perhaps less apparent in Quebec in recent years because legislative drafting
of ordinary statutes at the provincial level has to some extent embraced the civilian method, and
federal legislation has moved away from the English tradtion and has been influenced by the civilian
tradition (Sylvio Normand, An Introduction to Quebec Civil Law in Grenon & Blanger-Hardy,
eds., supra note 49 at 66).
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literature.65 Unlike small legal borrowings, bijurality in a mixed jurisdiction cannot be
concealed and can scarcely recede from view.
I have already mentioned that there is an important psychological aspect to the
process of recognizing a mixed jurisdiction, but some have argued that the
psychological aspects are beside the point: if, after all, there are mixed laws, why
would it matter whether the mixture goes recognized or unrecognized?66 To speak of
a subjective element in the equation seems to go against the fundamentals of a
historical-critical approach based on actual observation, according to which a fact is a
fact, irrespective of what locals may think.67
Jacques du Plessis has asked, If it is established that a system has been
influenced fundamentally by the civil law and common law, even though observers
have not traditionally appreciated that it displayed this characteristic, why should it
not be included in the list?68 Because, I would answer, comparative law
classifications and lists of one kind or another are not based strictly upon factual data.
If they were, all the world would be recognized as a series of mixed systems, and
faith-based traditions would have to be questioned. Many subjective elements are
structured into what we call a legal tradition. To some extent, a legal tradition
contains a belief system about the past. Many beliefs that cannot be scientifically
demonstrated can be found at the core of certain legal traditions, and this is most
evident in religious traditions like the Talmudic and the Islamic. But traditions also
embody sets of historically conditioned attitudes of mind.69
65 We might remember William Tetleys Voltairean remark that one might … define a mixed
jurisdiction as a place where debate over the subject takes place (Mixed Jurisdictions: Common
Law vs Civil Law (Codified and Uncodified) (Part I) (1999) 4 Unif. L. Rev. 591 at 593). This is not
without insight because a mixed jurisdiction resembles a permanent town hall discussion of the nature
of the system and its legal mentalits.
66 See Jacques du Plessis, Comparative Law and the Study of Mixed Legal Systems in Mathias
Reimann & Reinhard Zimmermann, eds., The Oxford Handbook of Comparative Law (Oxford:
Oxford University Press, 2006) at 477, 484. Kenneth Reid rightly notes that perceptions are unreliable
and often disputed, as in the famous debate between Gordon Ireland and his critics about the civilian
character of the Louisiana private law. Reid suggests that perceptions about the provenance of rules
may not actually matter, where, as in Scotland, no purpose is served by distinguishing between rules
derived from Rome and rules derived from England. Regardless of provenance, the rules today work
in the same way and rely on the same types of sources (The Idea of Mixed Legal Systems, supra
note 3 at 24). Yet it also seems right to say that the feeling in the 1960s that Scots law had reached the
point of no return (the eleventh hour has probably struck (T.B. Smith, Legal Imperialism and Legal
Parochialism (1965) 10 Jurid. Rev. 39 at 50)) was a perception that many did not share, but rightly or
wrongly it was consequential for the fortunes of Scots law. In the same way, Gordon Irelands
perception in the 1930s that Louisiana had ceased to be a civil law state, though perhaps completely
mistaken, sparked an impressive program of reform.
67 See Castellucci, supra note 62.
68 Supra note 66 at 484-85.
69 See John Henry Merryman & Rogelio Prez-Perdomo, The Civil Law Tradition: An Introduction
to the Legal Systems of Europe and Latin America, 3d ed. (Stanford: Stanford University Press, 2007).
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The prevailing perceptions of lawyers and judges, for example, help to explain
why today Texas and California are not regarded as mixed jurisdictions in the
classical sense. They are called common law states, yet they were once Spanish
possessions in which Spanish law fully applied. Even now, they still retain important
parts of this civilian heritage in their trial procedure, property and land titles, water
law, matrimonial systems, and so forth.70 There is mtissage in their makeup, yet for a
variety of reasons we are unequivocally told that these are common law states. Maybe
this is so because the quantity of civil law is not striking enough. Perhaps the civil
law component does not seem to be a separate system in and of itself. Or perhaps
the civilian element does not induce its own methodology, or, just as likely, it has
been forgotten by lawyers who increasingly know no history. Whatever the reasons,
this de facto mixture is ignored de jure.71
Prevailing states of mind, then, play a substantial role. Indeed, we are to a large
extent the playthings of our perceptions about this subject. Normally, national pride,
natural chauvinism, stealthy borrowing, and the simple passage of time all combine in
an irresistible way to patriate laws that actually originated elsewhere. They manage to
create a feeling of ownership out of borrowings. But in the mixed jurisdictions,
amnesia is not so easily induced. Something unassimilated and unforgettable rests, as
it were, in the frontal lobe of the legal consciousness.
III. Is There a Family of Mixed Systems?
By speaking of a third legal family, I do not wish to imply that there are no other
families beyond common law, civil law, and mixed jurisdictions. To the contrary, I
believe that only the limits of our present knowledge and our basic Eurocentric lack
of curiosity have kept us from discovering many more. Jaakko Husa has said that
the legal family approach is a historically determined macro-comparison,
holding that there are some interrelations between systems; otherwise the whole
attempt to compare entire systems would be futile. The legal families approach
is also an innate part of the very language of law of today.72
The systems or traditions grouped into families have something important in common
even though there is undisputable diversity among them. It is not an exact, empirical
description of a group, but rather, an analytical structure which provides a rough
70 See e.g. Joseph Webb McKnight, The Spanish Influence on the Texas Law of Civil Procedure
(1959) 38 Tex. L. Rev. 24; Joseph W. McKnight, Spanish Law for the Protection of Surviving
Spouses in North America (1987) 57 Anuario de historia del derecho espaol 365.
71 The point was well expressed by Joseph McKnight: To characterise a system as mixed is to
recognise a prevailing state of the legal mind. However mixed his system is in fact the English lawyer
does not think of it as such (Some Historical Observations on Mixed Systems of Law (1977) 22
Jurid. Rev. 177 at 178).
72 Legal Families in Jan M. Smits, ed., Elgar Encyclopedia of Comparative Law (Northampton,
Mass.: Edward Elgar, 2006) 382 at 384.
V.V. PALMER QUEBEC AND THE THIRD LEGAL FAMILY
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first-step approach for more detailed comparative studies. As such, legal family
contains both empirical and analytical features.73 Grouping the mixed jurisdictions
into a third legal family has been called a novel epistemic move,74 yet it is the
aspect of my writings that has been the most criticized.
The notion of a legal family is only offered for convenience, utility, and
explanatory power. There is no danger in misleading anyone, provided we remember
the words of Ren David:
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La notion de famille de droit ne correspond pas une ralit biologique ; on
y recourt seulement une fin didactique, pour mettre en valeur les
ressemblances et les diffrences qui existent entre les diffrents droits. Cela
tant, toutes les classifications ont leur mrite et aucune nest sans critique.
Tout dpend du cadre dans lequel on se place et de la proccupation qui, pour
les uns et les autres, est dominante.75
Thus I offer the concept of the third legal family as a way of highlighting the common
traits, shared issues, and basic resemblance of this collection of systems. The
existence of the following commonalities, which at the same time constitute
individualities from a group standpoint, form the empirical core of my claim.
(1) In each situation, a civil law that was shaped by Roman and canon law was
implanted in a far-flung province of the old jus commune, a tide of common law
influence later ensued, and a neo-civilian reaction to that influence occurred in the
twentieth century. In what other series of countries has such a pattern occurred?
(2) In each system, prototypical Anglo-American judicial institutions were in
charge of applying the civil law, meaning that judges with more creative mindsets and
greater inherent powers at their disposal interpreted the civil law. In the process of
judicial interpretation, the substance of the law was insensibly reshaped by actors and
institutions which did not pretend to be neutral conduits. Where else has this kind of
institutional disparity occurred?
(3) Everywhere in the mixed jurisdiction world, civil procedure is adversarial
along Anglo-American lines. The emphasis of that procedure is upon the remedy
rather than the right, and this has left a visible imprint on substantive civil law, which
emphasizes the right rather than the remedy.
(4) Whether the mixed system was codified or not, court decisions in mixed
jurisdictions are accorded more precedential value than in traditional civilian
jurisdictions. Indeed, in three mixed systems, court decisions are openly accepted as
an official source of law, second only to legislation.
73 Ibid.
74 Ibid. at 390.
75 Ren David, Les grands systmes de droit contemporains, 11th ed. by Camille Jauffret-Spinosi
(Paris: Dalloz, 2002) at 16.
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(5) Quebec aside, common law influence on the civil law follows a discernable
and predictable pattern, penetrating the most porous points of entry, such as general
clauses in the law of delict, while leaving resistant institutions like property law
relatively unaffected. The whole phenomenon of the second reception of common
law and its higher forms of creativity (original or autonomous law) is restricted to this
group. Where else is it even discussed?
(6) Commercial law follows market dynamics. Anglo-American commercial law
has everywhere replaced the law of merchants originally in place, partly because of
relatively weaker cultural attachment to commercial rules, but more decisively
because of pressure to conform to the dominant surrounding economy.
(7) Special cultural factors shape the jurists and the legal literature they produce.
Categories of jurists called purists, pollutionists, and pragmatists are, or once were,
apparent. The orientations are closely tied to national descent, maternal tongue, and
legal education. Internal legal history and historical periods are delineated by the
fortunes and fervour of these cultural alignments.
the ultimate reasons for their existence.
(8) Mixed systems resemble each other in the circumstances of their birth and in
IV. The Many Ways and Styles of Being Mixed
There is no single stylistic paradigm for mixed jurisdictions. Their styles result
from their different ages, different mother countries, the strength of source languages,
and so forth. Some are codified, others uncodified; some are French, others are
Spanish or Dutch; some were colonial possessions, others were not. A scholar of
mixed jurisdictions might note, however, that some systems seem in near equipoise
little mixing or blending of the two laws appears to be happeningwhile others
appear to be continually in motion. It is this last perspective that I believe may reveal
much about the style of mixed jurisdictions, and I would like to explore it with
special reference to Quebec.
Mixedness occurs at different levels and can be viewed as the product of a
distinct process within each level. The process is typically described as one of
penetration, merger, or interaction between the two laws, and the evidence lies in the
mutual modifications that result. Legal material is blended and modified in the
process of being borrowed, but borrowing is a most inexact term. It is more a
taking since no one pretends to be lending and no one has an intention of returning
anything.
This blending may occur at the level of: (1) the substantive rules; (2) the
methodology of the law; (3) public law; and (4) the metalegal level, where the general
culture intersects with the legal culture. These four levels can be discussed separately,
but they are so entangled and interrelated that isolated treatment is artificial. I may not
have time or space to discuss all four points properly, so I will only discuss the first
level and attempt to illustrate its interrelationship with the others. How mixing
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happens (or conversely, why it does not happen) provides an insight into the style
and ethos of the system. These styles are very individual within the family.
As I have just mentioned, a blending process usually takes place in the
substantive rules and principles within the private law sphereintramurally, if you
willand this is the source of mtissage in key parts of the civil law. The judges, the
writers, and of course the legislator(s) may play a creative role in this new normative
activity. This ongoing phenomenon could be called the second reception of common
law in the mixed jurisdictions, as opposed to the massive reception that occurred
when mixed systems were first created. The second reception represents the amount
of common law stirred into the private law sphere. It is essentially an unplanned,
evolutionary process, typically slow and often carried out by judges who have no
express mandate (legislative or otherwise) to anglicize the law.76
Now, each of the classical mixed systems can be measured and compared by the
size and depth of this second reception. They can also be compared by the degree to
which they use stereotypical justifications as excuses for common law mixing,
namely the five fantasas or excuses described by the late Puerto Rican Chief Justice
Jos Tras Monge.77 It is very interesting to compare the classical mixed systems in
these respects and to try to account for their differences. For instance, the second
reception in Louisiana and Scotland has been extensive, far greater than the reception
in Quebec. While certainly a mixed jurisdiction, Quebec is a distinguishable
personality. This reception in other systems was usually led by the judges, largely
unaided and unresisted by doctrinal writers who, in any event, appeared late on the
scene. The process in Quebec was different: the Quebec judges, assisted by a far
stronger doctrinal literature, were more prophylactic-minded in their function and
were inclined to maintain the purity of the two streams of law. The rule in Quebec
appears to be that when any appreciable amount of mixing is to occur, it should be
initiated and approved by the legislator.78
To test the accuracy of this rule it would be instructive to compare specific
sectors of the law. It is well known that the extent of the common law reception varies
by sector and the variations follow a somewhat predictable pattern, irrespective of
78 The Supreme Court of Canada articulated this rule very clearly in the context of civil procedure:
Lac dAmiante du Qubec Lte v. 2858-0702 Qubec, 2001 SCC 51, [2001] 2 S.C.R. 743, LeBel J.
(A Quebec court may not create a positive rule of civil procedure simply because it considers it
appropriate to do so. In this respect, a Quebec court does not have the same creative power in relation
to civil procedure as a common law court, although intelligent and creative judicial interpretation is
often able to ensure that procedure remains flexible and adaptable. Although Quebec civil procedure is
mixed, it is nonetheless codified, written law, governed by a tradition of civil law interpretation at
para 39).
76 See Vernon Valentine Palmer, A Descriptive and Comparative Overview in Palmer, ed., Mixed
Jurisdictions Worldwide, supra note 53, 17 at 53, n. 117.
77 The arguments of sameness, superiority, universal law, unification, and wise mixture. See ibid. at
54.
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whether the private law is codified or uncodified.79 For example, it is generally true
that the field of obligations has been the area of private law that usually receives the
greatest amount of common law influence. Within obligations, the law of tort (delict)
predictably absorbs the greatest amount while contract absorbs a lesser but still
substantial amount. Quasi-contractual obligations may be the least influenced of the
three. Property law (and perhaps succession law), unlike obligations, is usually an
unassailable stronghold of civilian jurisprudence. Thus in the Philippines, Scotland,
and South Africa, we find a heavy infiltration of common law in the law of tort. At
some point in the past, each jurisdiction accepted critical common law tort doctrines,
including a duty of care requirement in negligence, proximate causation analysis, the
defence of contributory negligence together with the palliative of last clear chance
(now abandoned), and some English nominate torts like nuisance, trespass, and
defamation. A glance at contract law may also show the reception of English imports,
including the principle of estoppel, the mailbox rule, the doctrines of discharge by
breach and anticipatory breach, and other English doctrines as well.80 This is why the
Quebec picture in regard to the second reception is so striking to the comparative
lawyer. Quebec courts did not specifically receive contract doctrines like estoppel,
nor specific tort doctrines and nominate torts. I suggested a moment ago that on a
vertical scale, tort law is the most susceptible, and perhaps it could be a proxy or
litmus for judging the extent of common law influence in private law as a whole. The
tort law of Quebec is remarkably free of the earmarks of the common law.
The treatment of pure economic loss is, to me, a convincing illustration of
Quebecs uniqueness. Generally speaking, pure economic loss stands at the cutting
edge of many fundamental questions as to how far tort liability can expand, what
burdens upon individual activity are sustainable, and whether an open-ended, unitary
general clause in the French tradition must receive special interpretation for pure
economic loss questions in order to prevent excessive liability. In the case of Quebec,
it speaks volumes about the system as a whole. In a masterful chapter contribution to
a book on pure economic loss, Daniel Jutras leaves no doubt that Quebec deals with
these questions in the liberal French tradition.81 Quebec has no conceptual equivalent
to the restrictive, relational concept of the duty of care in Anglo-American law;
protected interests are not limitatively listed or defined as in German tort law; and the
notion of injury in Quebecs general clause is taken broadly and not used to exclude
any category of harm. In short, Quebecs approach to this complex issue is broadly
liberal and free from formalistic constraints. With reliance upon the notion of
79 See the discussion of systemic patterns, ibid. at 57ff.
80 The text may be slightly overinclusive for cases where a country has developed a variant or an
adapted version of one of the English categories mentioned. See Paul Farlam & Reinhard
Zimmermann, South Africa (Report 1) in Palmer, supra note 53 at 123-30; Elspeth Reid, Scotland
(Report 1) in Palmer, supra note 53 at 229-31; Pacfico Agabin, The Philippines in Palmer, supra
note 53 at 441-42.
81 Daniel Jutras, Quebec in Vernon Valentine Palmer & Mauro Bussani, eds., Pure Economic
Loss: New Horizons in Comparative Law (New York: Routledge-Cavendish, 2009) 114.
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2009]
causation playing a key role in controlling the scope of liability, Quebecs approach is
very much akin to modern treatment of liability in France. If I am correct that pure
economic loss may serve as a leading indicator of the extent of the reception of
common law principles, then it tends to confirm the impression of Quebec as a
system in equipoise.
Of course, the legal climate of Quebec may not always have been as cool and
calm as it appears today. The protagonists in mixed jurisdictionsthe purists,
pragmatists, and pollutionistsmay have modified their roles over time.82 On the one
hand, Jean-Louis Baudouin has said that [m]ost, if not all, of the Quebec jurists have
been very critical of any encroachment of common-law rules and institutions in the
area of civil law (and in that sense, they can reasonably be qualified as purists). He
continued, [t]hus, I do not think one can say that a distinction ever existed in Quebec
between purists, pollutionists, and pragmatists.83 On the other hand, John Brierley
has argued that, in the past certainly, these divisions existed. He labelled the Judicial
Committee of the Privy Council (up to 1949) and the Supreme Court of Canada (in its
earlier pronouncements) as pollutionists.84 He listed Pierre-Basile Mignault, J.-
Emile Billette, and Louis Baudouin as exemplars of a purist approach, and thought
that George Challies and F.P. Walton fit into the pragmatist mould.85
We should also bear in mind that mixing takes place in the legislature more than
in the courtroom. The Civil Code of Qubec, for instance, contains a number of
particularly innovative mixtures, such as the hypothque ouverte and the
patrimony of appropriation, creations that I have elsewhere called original or
autonomous law.86 The question of whether these should be regarded as examples of
82 See Palmer, A Descriptive and Comparative Overview, supra note 76 at 31-35. Purists in the
mixed systems are generally those who seek to keep the civil law coherent, unsullied by
encroachment and true to its sources. Examples of common law assimilation are perceived as a sign of
decay and degeneration, a loss of cultural integrity. They can be slightly hostile to the term mixed
jurisdiction, preferring to call it a civil law system.
Pollutionists favour reception of common law rules, advancing noncultural arguments toward
that end, such as those based on efficiency, modernization or the virtues of uniform laws. They may
dismiss purists as impractical romantics dwelling in the past.
Pragmatists have broader cross-cultural attachments, take a more detached view of the system,
argue that judges and legislators should blend together the best features of both worlds and create
better rules than either system could offer on its own. Pragmatists tend to accept the term mixed
jurisdiction as a designation of the system.
83 Baudouin, Quebec (Report 2), supra note 54 at 358.
84 John E.C. Brierley, Quebec (Report 1) in Palmer, Mixed Jurisdictions Worldwide, supra note
53, 329 at 344.
85 Ibid. at 343-44. There is a mine of information on these attitudes in the years 19221939 in Sylvio
Normand, Un thme dominant de la pense juridique traditionnelle au Qubec: La sauvegarde de
lintgrit du droit civil (1987) 32 McGill L.J. 559.
86 Palmer, A Descriptive and Comparative Overview, supra note 76 at 59-62. Further examples
would include the Scottish trust, the Mauritian concept of legitimation by adoption and the Scots
law of unjustified enrichment, which Whitty and Visser describe as a third way between the English
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autonomous law, however, is not without controversy. Kenneth Reid writes that when
mixed jurisdictions create new norms, it never amounts to a legal third way.87 It is
simply the reconfiguration of common law and civil law components. There is no
third element which is neither civil law nor common law.
This is not the place to attempt an extended discussion, but let me offer an
interesting example that was the subject of a paper delivered by my colleague Jeanne
Carriere last summer in Edinburgh.88 In that paper, she outlined Louisianas unique
law of filiation, called dual paternity. According to her study, two late-twentieth
century decisions on filiation created the possibility that a child could have three
parents simultaneously: a mother and two legally recognized fathers. Although the
nineteenth century civil code determined the parent-child relationship through the
presumption pater est quem nuptiae demonstrant, the Louisiana Supreme Court, and
later the legislature, created the biologically impossible concept of dual paternity.89
This concept holds that a child may be found to have both a presumed father and a
biological father at the same time, and the child may make claims against both in
order to receive benefits. The court also invented an action of avowal that permitted
the biological father to assert his rights as a father. Professor Carriere argues that this
bold use of power by the courts in Louisiana, which function like common law courts
in actively shaping the law, enabled this type of innovation. For reasons already
mentioned, a parallel to this is not to be expected from the more restrained judicial
function in Quebec, yet there is no lack of creative intermingling. However, the
intermingling in Quebec seems to be taking place in the work of the legislature.
appear to an outsider like myself.
(1) A commitment to purity and perhaps a faith in purity. This was already an
element in Waltons understanding of the system when he wrote in 1908 that a
provision derived from the French law is to be interpreted by reference to French
authorities, and a provision derived from the English law, by reference to English
authorities.90 And Castel, in discussing Waltons statement, later said, It is best to
keep the French law pure, and the English pure and not to attempt to blend them.91
and German taxonomies for unjustified enrichment (Niall R. Whitty & Daniel Visser, Unjustified
Enrichment in Reinhard Zimmermann, Daniel Visser & Kenneth Reid, eds., Mixed Legal Systems in
Comparative Perspective: Property and Obligations in Scotland and South Africa (Oxford: Oxford
University Press, 2004) 399 at 412).
Let me now summarize by stating three traits of Quebecs mixed system as they
87 Kenneth G.C. Reid, supra note 3 at 25.
88 See Jeanne Carriere, Filiation and its Discontents: Mixit and Dual Paternity in Louisiana
(Paper presented to the Second World Congress of Mixed Jurisdiction Jurists, Edinburgh, 2007)
[unpublished].
89 See T.D. v. M.M.M., 730 So.2d 873 (La. Sup. Ct. 1999).
90 Frederick Parker Walton, The Scope and Interpretation of the Civil Code of Lower Canada
(Toronto: Butterworth, 1980).
University Law Library].
91 J.G. Castel, The Civil Law of the Province of Quebec (1960) [unpublished, archived at Tulane
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This credo reached its apogee in Pierre-Basile Mignaults conception that Quebec
civil law was a complete and closed system: Une cloison tanche et infranchissable
spare les deux grands systmes juridiques. … Il ny a pas immixtion ou absorption
de lun au profit ou au dtriment de lautre.92 There could be no mixing at all, for
Quebec civil law was an ancestral heritage necessary to the survival of the nation. To
be pure, it had to stay introverted and closed.93 His admiration of the provinces
French legal heritage was vast: On peut dire, sans exagration, quaucun pays ne
possde une littrature lgale comparable celle de la France. Les grands ouvrages
de Dumoulin, de Domat et de Pothier ont reu leur couronnement dans le code
Napolon qui est lexpression concise et officielle de leur doctrine.94 Mignault
viewed the law of other provinces as un droit tranger which might insensibly
infiltrate and contaminate la puret de notre droit.95
(2) A commitment to legislative technique and codification, coupled with a rule to
the effect that if any appreciable amount of mixing, mingling, or innovating is
contemplated, it must be initiated and approved by the legislator.
(3) A commitment to the Civil Code of Qubec as representing the jus commune
of the province. The Code has been given a commanding position in the hierarchy of
private law sources. The preliminary provision of the Code accomplishes this in one
of the more remarkable statements of modern civil law.96
William Tetley, a dear friend and respected colleague here at McGill and Tulane
who has made a great contribution to this subject, has set forth a series of factors that
he considers essential or very important for the long-term survival of a mixed
jurisdiction.97 Generally he thinks that these systems, to be viable, must have
92 P.-B. Mignault, Les rapports entre le droit civil et la common law au Canada, spcialement
dans la province de Qubec (1932) 11 R. du D. 201 at 206, 211.
93 Howes argues that Mignault was extraordinarily effective in translating his purist conceptions into
action while he sat on the Supreme Court of Canada. He describes the modus operandi: first, deflect
their attention from the past and focus it on the future; second, sensitize them to the bastardy of other
traditions and convince them of the purity of their own; third, demonstrate a divergence in the
common and civil law solutions to a problem wherever possible; and fourth, emphasize the hierarchy
of sources (David Howes, From Polyjurality to Monojurality: The Transformation of Quebec Law,
1875-1929 (1987) 32 McGill L.J. 523 at 550). Lastly, never forget the case of Louisiana.
94 P.-B. Mignault, Le Droit civil canadien: Bas sur les Rptitions crites sur le Code Civil de
Frdric Mourlon, avec revue de la jurisprudence de nos tribunaux, t. 1 (Montreal: Whiteford &
Thoret, 1895) at v. Mignaults own legal treatise, said Howes, used the frame of Mourlons treatise
rather like a sieve, to isolate … the contents of Quebec civil law (Howes, supra note 93 at 548).
95 P.-B. Mignault, Lavenir de notre droit civil, supra note 2 at 60.
96 The Civil Code comprises a body of rules which, in all matters within the letter, spirit or object
of its provisions, lays down the jus commune, expressly or by implication. In these matters, the Code
is the foundation of all other laws, although other laws may complement the Code or make exceptions
to it (Preliminary Provision, para. 2 C.C.Q.).
97 William Tetley, Nationalism in a Mixed Jurisdiction and the Importance of Language (South
Africa, Israel, and Quebec/Canada) (2003) 78 Tul. L. Rev. 175 at 186-190.
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structures, institutions, and languages to support each of the two legal traditions
respectively: a kind of legal diarchy. Thus he argues for two legislatures, two court
systems, two languages, two cultures, two universities, and two nations existing
together in a single state. This is indeed the present infrastructure of the Quebec legal
system, and who can doubt its robustness? But I would add that in a comparative
lens, these features are not as important to the survival of Quebecs mixit, or to the
survival of her sisters, as they are to its individuality, its style, and its ethos. I am
inclined to think these features undergird Quebecs exceptional personality, rather
than to say they are prescriptions or preconditions of survival for mixed jurisdictions
generally. Scotland, for example, the oldest of the mixed jurisdictions, shows no signs
of senility, but it has only one language, not two; only one court structure, not two;
and for three hundred years it had no parliament of its own. Yet the long-term
prospects for Scots law today are far stronger than they were when T.B. Smith
declared that the eleventh hour had already struck.98 Louisiana and the Philippines are
also missing key parts of this infrastructure (particularly the preservation of the
French and Spanish languages), and surely they would have stronger or different
civilian traditions were that not the case. In my view, however, the style of the
systems would simply change. There is no single paradigm and no single style of
being mixed.
Conclusion
I would like to close this evening with this reflection. A mixed jurisdiction, one
might well conclude, must be a difficult balancing act: a tightrope walker teetering
between two traditions, with an abyss below. It is not an envious position to be in.
Everything seems to be at stake, even national survival (of course, if you did fall, the
danger is not that you would experience a shortage of law). But the situation is not as
precarious as it may appear at first sight or as it is popularly portrayed. There are
strong guide wires usually in place, particularly, I believe, here in Quebec
languages in the schools, supporting cultures, constitutional compartmentalization, a
developed body of legal literature, well-trained judges, educational programs,
translation projects, permanent law institutes, and great universities such as this one.
We know, of course, there is some peril of falling on either side because some
jurisdictions, like Arkansas and Texas, fell almost immediately, never becoming
known as mixed systems in the first place. Others, like British Guiana, began the
journey but fell from grace along the way.99 Guiana had no guide wires. The rest have
continued on as funambulists to this day, and though some struggle to maintain their
balance more than others, these interesting systems promise to be there tomorrow. A
mixed past begets a mixed future. Lord Bacon knew this was a strength:
98 See supra note 66.
99 M.C. Dalton, The Passing of Roman-Dutch Law in British Guiana (1919) 36 S.A.L.J. 4.
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[T]he probability is … that our laws are as mixed as our language, compounded
of British, Roman, Saxon, Danish, and Norman customs; and as our language is
so much the richer, so the Laws are the more compleat.100
100 Anonymous, A Law Grammar; or, an Introduction to the Theory and Practice of English
Jurisprudence, 1791 at 17, cited in Donlan, supra note 1.
