1. Comparative Law – Continental Law
Prof. Giorgio F. COLOMBO

2. «Mixed» Legal Systems
Lesson n.11

3. Definition Mixed system: Common Law and Civil Law
Every system is «mixed» to some extent
«Mixed» systems vs. «Stratified» systems
Which are them?
Louisiana
Canada
Scotland
South Africa
Israel

4. Colonial Styles
Different according to period, geographical areas and population
The Americas and Australia
India, South East Asia
Attitude towards previously highly-organized states
Try to make use of previous rulers to support colonial power
«Native courts»

5. Successive colonizations
Europeans vs. Europeans
Different style
Perception about development

6. Mixed Systems – Common Features
They all shifted under the Common Law influence
Public Law, Court system: new rules
Private law, etc: original system
Problems of «tuning»
Courts vs. Procedure
Erosion in many areas
Language

7. Lousiana

8. Lousiana XVII century → French colony
Cotume de Paris
Code Noir
1762 Secret Treaty of Fontainebleu → Spain
Spanish colonial law
1800 Treaty of San Idelfonso → France
Same as before, but without the Code Noir
1803 → sold to the United States 　

9. Louisiana 1808 Digest of Civil Laws 1812 XVIII State of the USA
Structure of the French Civil Code
Peculiar content
Written in French and translated in English
1812 XVIII State of the USA
1825 Civil Code
Cumbersome and a bit obscure
Written in French and English. In case of doubts, the French version prevails

10. Louisiana 1870 Civil Code Various reforms in the XX century
Only in English
Various reforms in the XX century
1990 Uniform Commercial Code
Last State of the Union to adopt it

11. Canada

12. Canada 1534 Nouvelle France 1612 Cour de prévôté
Application of the Coutume de Normandie
Parlament de Rouen as court of appeal
1663 Application of the «Law of France»
1763 Treaty of Paris: Canada is transferred to the British Empire

13. Canada
1763 Application of British Law «to the maximum possible extent»
Reform of the court system
Application of French law as «equity»
Opposition of the French-speaking population
1774 Québec Act
Partial autonomy of the French-speaking Canada
1867 British North America Act
Dominion

14. Canada 1866 Code civil du Bas-Canada
1931 – 1949 – 1982 Independence from the United Kindgom
Peculiar situation

15. Canada

16. Scotland

17. Scotland
From 1707 onwards, one of the nations composing the United Kingdom (England, Wales, Scotland, Northern Ireland)
However, the influence of Civil Law is very strong

18. Hadrian’s Wall

19. Scotland

20. Scotland Until the XV century, there were no universities in Scotland
Lawyers went to study in France, Germany, the Netherlands
Contribution of famous Scottish jurists to the British System
The issue of autonomy and independence
1998 Scotland Act
Brexit?

21. South Africa

22. South Africa 1652 Dutch Colony 1806 British conquest of Cape Town
Dutch Law (based on Roman Law)
1806 British conquest of Cape Town
Reform of the Court system
Reform of procedural law
Traces of ancient Roman law
E.g. Parking (Stabularius)

23. Israel

24. Israel Jewish Law ≠ Law of Israel
However, influence of religious rules on State legislation
1517 – 1917 Ottoman Empire
Magalla
1920 – 1948 British Administration
British Legislation
«Zionism» (1897)

25. 1948 State of Israel
After WWII, many Jewish survivors of the Shoah fled to the territory of Palestine
14 May 1948 foundation of the State of Israel
Complex Legislation
Binding precedent
Commercial law on the British model
Civil law on the Continental model
Family law influenced by the Jewish Law