Quebec and her sisters in the third legal family.

• Author: Palmer, Vernon Valentine

The global legal landscape is populated with at least three legal families: civil, common, and mixed. This third family, and Quebec's 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.

The lecture proceeds by means of a five-fold 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. Quebec's own unique experience helps illustrate this proposition.

Le paysage juridique global est peuple d'au moins trois familles juridiques : de droit civil, de common law et de droit mixte. Cette troisieme famille, ainsi que la place qu'y occupe le Quebec, constitue le sujet de la Conference Wainwright 2008. Le professeur Vernon Palmer avance que meme si les juridictions de cette famille partagent parfois certaines caracteristiques, il n'existe pas de modele unique de juridiction mixte. Un systeme juridique florissant comme celui du Quebec s'appuie inevitablement sur son propre contexte social, culturel et institutionnel distinctif.

La Conference se deploie a travers une exploration en cinq parties du concept de <>:

(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'a ses fondements egyptiens pour ensuite le ramener vers sa reception doctrinale actuelle ;

(2) Une appreciation du pluralisme juridique. Le professeur Palmer suggere que le pluralisme fournit un outil critique pour identifier et etudier les systemes hybrides, mais que sa nature liberale et inclusive ne parvient pas a etablir une taxonomie utile des systemes juridiques ;

(3) Une definition provisoire de juridiction mixte classique, basee sur ses caracteristiques ou composantes typiquement partagees, soulignant le role de la conscience subjective dans l'identification et la determination des juridictions mixtes ;

(4) Une explication du concept de famille juridique et de la classification des juridictions mixtes en tant que troisieme famille juridique distincte ;

(5) Une discussion des multiples facons par lesquelles deux traditions juridiques peuvent se metisser. Le professeur Palmer conclut la Conference en argumentant qu'il n'existe pas de juridiction mixte paradigmatique. L'experience unique du Quebec lui permet d'illustrer cette proposition.

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 [T]he law we live under is as compound as the atmosphere in which we breathe.

Edward Wynne (1)

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 l'Amerique 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. Quebec's and Louisiana's first laws were the Coutume de Paris and the royal ordinances. Our first governmental institution was the Conseil superieur. We each owe vast intellectual debts to the Code Napoleon 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 to find that our original 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 anyone's 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. Louisiana's 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: "N'oublions pas le cas de la 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 etjuridiques.

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 Quebec's 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.

1. 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 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 law's 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...