Legal hybridity in Hong Kong and Macau.

• Author: Castellucci, Ignazio
• Position: VII. Testing the Tools for Research on "Mixity" Against China: More Lessons to Be Drawn, with footnotes, p. 715-720 - Symposium: Mixed Jurisdictions

VII. Testing the Tools for Research on "Mixity" Against China: More Lessons to be Drawn

1. Modern Mixed Jurisdictions

   "Classical mixed jurisdictions studies" have largely been confined to studying systems with historical superimpositions that occurred decades or even centuries ago. These systems were already firmly established since the inception of "mixity" studies. As a result, the importance attached to the different "mixing" processes that occurred in those "mixed" jurisdictions was perhaps smaller than deserved. The focus has instead been on the actual "mixed" features of those jurisdictions and the common elements that set them apart from both civil law and common law systems and place them in the middle of the two related traditions to form a special group: a "family", if we so like.

   In the Chinese developments described above, the process of mixing can be observed "live". This process should become an extremely interesting and valuable field of study for scholars of mixed jurisdictions, similar to how an ongoing eruption observed live should be of much interest for a volcanologist instead of, or in addition to, cutting cross-sections or extracting core samples to observe the cold, consolidated, and stratified lavic materials of events that occurred long ago.

   The above analysis might suggest that even for the "classical" mixed jurisdictions, political action and policy measures, whether transformed into legal enactments or not, and other "soft" methods could have played a significant role during the "mixing" phase that is no longer as evident to legal scholars today. Even if the pillars of the resulting superimposition have invariably been, in the event, the ones identified by Palmer (public laws and institutions, framework concepts, and the judiciary), the political decisions made, policy actions implemented, and pressures exercised by the dominant power to obtain the "mixed" environment including the growth of the "subjective element"--interacted with the relevant context. These "soft" elements have certainly differed according to the different contexts. These differences certainly contributed to shape the mixed systems that later emerged. (148)

   "Classical" mixed systems have hot been mixed since the Big Bang. "Mixity status" was not attained one day through the mere superimposition of statutes and legal institutions, like turning a switch. Some tension, some kind of struggle, took place. For example, in Quebec, William Tetley described the reaction after 1763 of the civil law community receiving the common law superimposition as a boycott (149) (see also Louisiana after 1803). (150) Cameroon's "mixed provinces" still seem to display little conversation between their common law tradition and the superimposed civil law institutional frame. (151) South Africa and the Philippines have also posed specific problems warranting specific responses during their respective transitions due to local specificities and plural legal environments. (152)

   However, "straight" Western legal systems (i.e. the Western modern legal systems excepting the "classical" mixed ones) have also not been monoliths since the Big Bang. Both common law and Roman law/canon law/ius commune originated and developed from and through different mixes of legal experiences. Most of the derived legal systems experienced moments of relative hybridity and homogeneity. (153)

   Transitional phases could fruitfully be researched to allow a more complete appreciation of the many facets of the resulting legal hybrids, including "classical" mixed systems and also including the many systems now perceived as monolithic. (154) This methodological expansion would likely bring about innovation in substantive knowledge due to the wider consideration given to factors and formants that thus far have not been the focus. The expansion would also put "mixed" studies in a wider historical perspective. (155) This proposal will make the research on legal hybridity much more complex than it has been so far when limited to "classical" mixed jurisdictions. Sense must be made of a wide array of contextual societal data and events, including historical, political, economic, cultural, and religious events, to assess their impact on the relevant legal environment. (156)

   The strong or critical elements of the dominant system, as well as those of the one receiving the superimposition, shall be identified in each particular hybridization process, along with their systemic effects, to better appreciate the dynamics of change and the resulting products. Methodologies shall, by necessity, go beyond purely technical-legal methods, and might include the analysis of all formative elements (157) guiding or characterizing the superimposition process. The methodologies will pay greater attention to phenomena of legal pluralism and may even resort to quantitative methods of social sciences.

2. Importing Foreign Legal Models

   Another thing we can learn about legal hybridity from observing today's China, with its reforms establishing a market economy and its rapid legal changes, is that hybridity might be the result not of an external superimposition but also of a sovereign choice of importing foreign legal models. Arguably, this happened earlier with Israel, which became mixed at an early stage in its legal history as a state without any superimposition from outside. (158) It could also be the case of the United States, with its broad constitutional provisions, multiple layers of legislation, civil codes, Restatements, the Uniform Commercial Code, and law schools teaching a sort of ius commune americanum, even ff St is not yet acknowledged by local jurists. (159) Other processes generating hybridity can be identified in intra-national processes of rapprochement among originally separate entities, as is happening in China, as well as in supra-national processes, as is happening in the European Union.

   More importantly, it is also possible that the natural rigidity of out categories and minds makes us see "mixity" or "hybridity" where we simply have the ongoing formation of a new system. China and its SARs could simply be seen as a complex entity with multiple, intertwined evolutionary paths, including a large process of legal reforms, with internal cross-fertilization as well as the reception of a variety of different foreign models. Nothing comes from an absolute vacuum; we use what we already know to try to define and describe new things. After all, no jurisdiction has ever produced internally all the products needed for its development.

3. Subjective Perception

   A key intuition of Palmer would be pushed forward as a result of this proposed approach. "Mixity" would be very much about subjective perception, the third test in his grid, in relation to major changes of legal or institutional setting. Tetley's light remark about a mixed jurisdiction being "a place where debate over the subject takes place" would not seem so paradoxical. (160) Are all systems generally perceived as "mixed" simply systems in transition, like most or all others are or have been? Are "mixed" systems merely depicted at a particular stage of that transition, however slow it might be?

   Western legal history is a history of ramifications, interactions, contaminations, and intertwined evolutionary paths. If several Western legal systems have been monolithic at some stage, most of them have also been hybrid at some other stage. (161) Continental ius commune and the English classical common law had significant historical connections. Long before modern "convergence" between the two main Western legal traditions, the existence of significant common structural and operational elements has been demonstrated, including a common-law-style approach to case law in the work of several continental high courts before the codification era, (162) and the importance of Roman/civil and canon scholarly laws as components of the English common law tradition. (163)

   Codified law has been superimposed on ius commune in most places on the European continent; common law has been superimposed on continental jurisdictions of ius commune, Roman-Dutch law, and codified civil law in different places. But even common law can be identified either as the English classical system or as the more recent American one. Some superimposition of the latter model over the former in the early days of the United States' existence cannot be ruled out in objective terms. It is perhaps the idea or perception of continuity that makes American law seem closer to the idea of a common law jurisdiction than to the paradigm of a "mixed" one. (164)

   Future legal historians may, with hindsight, perceive complex, ramified, and intertwined Western transitions. We can only see--being in the middle of the change--static systems or very slow changes, with moments of faster or acute change identified with superimpositions or additions of new elements. These points of view are different subjective readings of objectively similar situations. The current categorization of "classic" mixes as the "third (Western) family" could simply be due, after all, to the historical accident of a more conspicuous "mixity" of that group of jurisdictions at the specific time of observation by modern comparative law, with its inherent taxonomic urge. This categorization occurred roughly when Rene David's picture was taken. (165)

   Might Louisiana and Scotland some day cease to be considered "mixed jurisdictions" except for historical purposes? Could their "mixity" become, in the long term, a purely subjective, distorted perception as they, objectively, become increasingly indistinguishable from their larger national tradition? (166) This possibility assumes, of course, that the latter do not start showing clear and acknowledged elements of "mixity". The only chance of maintaining either an "eternal state of mixity" or an eternal state of monolithism, mutatis mutandis, would be if an...