PUBLIC LAW IN MIXED LEGAL SYSTEMS AND PUBLIC LAW ASA'MIXED SYSTEM Esin Oruci, School of Law. University of Glasgow Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any source. Readers are permitted to make copies, electronically orprinted, for personalamr form, printed, electronic or othenwise, except for reasonable quoting clearly indicating th sroom use Abstract Mixed legal systems have trad itionally been classif ied as such by reference to varying degrees of mixite' within areas of private law. This paper refocuses such long-established methods of classification by considering the mixedness of public law, and moves discussion to systems where new mixes are taking place, particularly in the context of the European Union. The author analyses the changing composition of the new mixed systems, and characterises the processes of transposition and cross-fertilisation by which they have been reached 1. Introduction Mixed legal systems in the classical sense are systems in which elements from more than one legal trad itional source co-exist or intermingle. Such legal systems are mixed only as to their private laws. This 'mixite' may live within a jurisdiction otherwise 'pure'. The jurisdiction. may be part of another whole, such as an American or a Canad ian mixed system within a Federal surround or, like the Scottish, within a unitary surround New varieties of mixed lega stems are developing today, and these will be the ord inary systems of the future systems regarded as ordinary'in the past changed into new mixes through cross-fertilisation or direct transpositions from other legal systems. Mixed systems', the so-called"exceptions may well become the ord inary' or the rule Public law by its nature extends throughout the whole of a State; therefore, the parts of a State would not normally have separate identities in public law or be different from the whole in mixed jurisd ictions living in surrounds different from themselves. However, even though in Scotland, for example, only the private law is preserved in its difference and public law is deemed to be the same for the whole of the UK, nonetheless judicial review and the public/private divide do not mean exactly the same things here in Scotland. Scottish public law has its difference, public law being constitutional law, administrative law or criminal lay Public law has been trad itionally regarded as nationally specific. Nevertheless, it is in this area that we see most of the fundamental cross-fertilisation to date. Does the resultant change justify regard ing the public law system as"mixed"? Though the extent of these reciprocal influences may justify the use of the term 'mixed system of public law, it may not make the
PUBLIC LAW IN MIXED LEGAL SYSTEMS AND PUBLIC LAW AS A ‘MIXED SYSTEM’ Esin Örücü, School of Law, University of Glasgow Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use. Abstract Mixed legal systems have traditionally been classified as such by reference to varying degrees of ‘mixité’ within areas of private law. This paper refocuses such long-established methods of classification by considering the mixedness of public law, and moves discussion to systems where new mixes are taking place, particularly in the context of the European Union. The author analyses the changing composition of the new mixed systems, and characterises the processes of transposition and cross-fertilisation by which they have been reached. 1. Introduction Mixed legal systems in the classical sense are systems in which elements from more than one legal traditional source co-exist or intermingle. Such legal systems are mixed only as to their private laws. This ‘mixité’ may live within a jurisdiction otherwise ‘pure’. The jurisdiction, may be part of another whole, such as an American or a Canadian mixed system within a Federal surround or, like the Scottish, within a unitary surround. New varieties of mixed legal systems are developing today, and these will be the ‘ordinary’ systems of the future as systems regarded as ‘ordinary’ in the past changed into new mixes through cross-fertilisation or direct transpositions from other legal systems. ‘Mixed systems’, the so-called ‘exceptions’, may well become the ‘ordinary’ or the ‘rule’. Public law by its nature extends throughout the whole of a State; therefore, the parts of a State would not normally have separate identities in public law or be different from the whole in mixed jurisdictions living in surrounds different from themselves. However, even though in Scotland, for example, only the private law is preserved in its difference and public law is deemed to be the same for the whole of the UK, nonetheless judicial review and the public/private divide do not mean exactly the same things here in Scotland. Scottish public law has its difference, public law being constitutional law, administrative law or criminal law. Public law has been traditionally regarded as nationally specific. Nevertheless, it is in this area that we see most of the fundamental cross-fertilisation to date. Does the resultant change justify regarding the public law system as ‘mixed’? Though the extent of these reciprocal influences may justify the use of the term ‘mixed system of public law’, it may not make the
legal system a mixed system. The reverse is also true. What would be a 'mixed public law? Would it be a cross between the french and the american or the german and the Irish? Would it be mixed in substance or structure, or way of thinking? After a brief consideration of the notion of mixed legal systems, this paper approaches subject both as public law in 'and ' mixing systems and public law as a mixing mixed' system, that is the 'mixte of public law. The first is mainly the outcome of transposition, the second mainly of cross-fertilisation 2. Mixed legal systems Mixed legal systems come into being as a result of the transmigration of legal ideas institutions, concepts and structures under various types of pressure, internal or external Mixed legal systems in the classical sense, named generally mixed jurisdictions, may be a thing of the past reflected only in historical examples such as Quebec, Louisiana, South Africa and Scotland. Yet, some of these old 'mixed jurisdictions, such as South Africa and Scotland, are also facing new challenges, shifting and forming new mixes, the systems opening up to a new and diverse range of influences. In addition, many new mixes are developing and developing fast I have said elsewhere that attempting a comprehensive study and analysis of mixed systems is a dangerous and delicate task I There I used mixed systems' as the general term, ' mixed juris ictions' for specific types of systems historically designated as such, the term"mixture for mixes of the past which may or may not still exist in that form and the terms 'mix'or mixite' specifically for mixes in the making today. 2 Tetley defines a mixed legal system as one in which the law in force is derived from more than one legal trad ition or family,, and a mixed jurisd iction as 'a country or a political subdivision of a country in which a mixed legal system prevails.3 Milo and Smits state that the adjective 'mixed may mean many things a combination of various legal sources',a combination of more than one body of law within one nation, restricted to an area or to a culture, and the existence of different bodies of law applicable within the whole territory of a nation. The authors claim that today ' the law of all the member states of the european Community is mixed, since in a sense these have derived their law from Brussels as well E. Orucu, Mixed and Mixing Systems: A Conceptual Search, in E. Orucu, E. Attwooll &S. Coyle(eds ) Studies in Legal Systems: Mixed and Mixing, Kluwer Law Intemational, The Hague, London, 1996, 335-351 Also see W. Tetley, "Mixed Jurisdictions: Common Lawvs Civil Law(1999)IV Uniform Law Review 591-619,877-907, and J. McKnight, "Some Historical Observations on Mixed Systems of Law(1977)22 Juridical Review. 177 bEing prone to using culinary metaphors, I envisage this 'mix'asacake mix where the outcome is not truly nown until the cake is fully cooked, the chances of it being spoilt by under-or over-cooking always being a tEtley, op cit, supra n 1, 597 4M. Milo &J. Smits, "Trusts in Mixed Legal Systems: A Challenge to Comparative Trust Law'(2000)3 European Review of Private Law, 421, at423
legal system a ‘mixed system’. The reverse is also true. What would be a ‘mixed’ public law? Would it be a cross between the French and the American, or the German and the Irish? Would it be mixed in substance or structure, or way of thinking? After a brief consideration of the notion of mixed legal systems, this paper approaches its subject both as public law in ‘mixed’ and ‘mixing’ systems and public law as a ‘mixing’ or ‘mixed’ system, that is the ‘mixité’ of public law. The first is mainly the outcome of transposition, the second mainly of cross-fertilisation. 2. Mixed legal systems Mixed legal systems come into being as a result of the transmigration of legal ideas, institutions, concepts and structures under various types of pressure, internal or external. Mixed legal systems in the classical sense, named generally ‘mixed jurisdictions’, may be a thing of the past reflected only in historical examples such as Quebec, Louisiana, South Africa and Scotland. Yet, some of these old ‘mixed jurisdictions’, such as South Africa and Scotland, are also facing new challenges, shifting and forming new mixes, the systems opening up to a new and diverse range of influences. In addition, many new mixes are developing and developing fast. I have said elsewhere that attempting a comprehensive study and analysis of mixed systems is a dangerous and delicate task.1 There I used ‘mixed systems’ as the general term, ‘mixed jurisdictions’ for specific types of systems historically designated as such, the term ‘mixture’ for mixes of the past which may or may not still exist in that form and the terms ‘mix’ or ‘mixité’ specifically for mixes in the making today.2 Tetley defines a mixed legal system as ‘one in which the law in force is derived from more than one legal tradition or family’, and a mixed jurisdiction as ‘a country or a political subdivision of a country in which a mixed legal system prevails’.3 Milo and Smits state that the adjective ‘mixed’ may mean many things: a ‘combination of various legal sources’, a ‘combination of more than one body of law within one nation, restricted to an area or to a culture’, and ‘the existence of different bodies of law applicable within the whole territory of a nation’.4 The authors claim that today, ‘the law of all the member states of the European Community is mixed, since in a sense these have derived their law from Brussels as well’.5 1E. Örücü, ‘Mixed and Mixing Systems: A Conceptual Search’, in E.Örücü, E. Attwooll & S. Coyle (eds.), Studies in Legal Systems: Mixed and Mixing, Kluwer Law International, The Hague, London, 1996, 335-351. Also see W. Tetley, ‘Mixed Jurisdictions: Common Law vs Civil Law’ (1999) IV Uniform Law Review, 591-619, 877-907, and J. McKnight, ‘Some Historical Observations on Mixed Systems of Law’ (1977) 22 Juridical Review, 177. 2Being prone to using culinary metaphors, I envisage this ‘mix’ as a ‘cake mix’ where the outcome is not truly known until the cake is fully cooked, the chances of it being spoilt by under- or over-cooking always being a possibility. 3Tetley, op. cit., supra n. 1, 597. 4M. Milo & J. Smits, ‘Trusts in Mixed Legal Systems: A Challenge to Comparative Trust Law’ (2000) 3 European Review of Private Law, 421, at 423. 5 Ibid
The following points are important. The historical accidents responsible for the coming into being of such systems are diverse. Trad itionally, such systems are regarded as exceptions or sui generis. Instances of mixing are complicated as they can be overt or covert, structured or unstructured, complex or simple, blended or unblended, and therefore difficult to define. 6 Mixed systems present themselves to comparative lawyers in very diverse forms, there are ongoing states of mix, and a wide scope of knowledge is required to fully analyse this phenomenon. These problems must be addressed when stud ying mixed legal systems. It can of course be said that these difficulties are applicable to analysis of all legal systems and w know that not only are all modern legal systems mixed to a certain degree, at least as to pedigree, but that many more systems are shifting and in transition as new types of mixes come into being. 7 All law is mixed and there are no exceptions. It is only that the mixture is different Mixed legal systems rely on the theory of legal families, yet challenge it. The process of mix moves a legal system out of the style and the internal logical pattern of one trad ition or family of laws. The system first floats in the periphery, poised on the verges of two and sometimes three traditions. It then moves towards its new family, clinging nonetheless to settled peculiarities of the former. So it does not lose the characteristics of the first altogether, and does not acquire totally those of the new one; the levels of combinations and therefore the extent of the mix varies 8 An analysis of any mixed legal system shows that at least two different trad itions or cultures are or were in contact and that the end product of the encounters is a system utilising elements of more than one legal tradition. Beyond this, there is no general understand ing as to standards for measuring how these systems have come about, the degree of contact between the different trad itions or the correct characterisation of the outcome We are a tool of analysis to indicate whether simple rule-borrowing is a significant step in the ot have ooking at points of contact, intersection or confluence of legal trad itions. Yet we do nd formation of a mixed legal system, what is the degree of the necessary relationship between elements from different trad itions, that is, the underlay and the overlay, the significance of the element of when'mixing produces a mixed legal system, or the point at which a legal system can properly be called mixed In historical terms, most mixed legal systems were a consequence not only of strong movements of transmigration of legal institutions and ideas, mostly in the form of mpositions, but also of divergent linguistic, communal or religious trad itions indigenous to many legal systems are interrelated, such as in the el Dhen l stems are the consequences. mat 6Such mixes can be portrayed along a spectrum. See E. Orucu, ' A Theoretical Framework for Transfrontier Mobility ofLaw,, in R. Jagtenberg, E. Orucu A. De Roo(eds ) Transfrontier Mobility of Law, Kluwer Law International, The Hague, 1995, p. 12 7For example, in the new South African mix created by the Constitution of 1996, the scope of the mix extended by regarding traditional law as part of South African law, as well as adding the Canadian and German models to the elements in the mix sFor the patterns of intemal logic and the outcome of movements ofelements between system s, see the schematic expose in Orucu, op. cit, supra n. 1, 339 and 343
The following points are important. The historical accidents responsible for the coming into being of such systems are diverse. Traditionally, such systems are regarded as exceptions or sui generis. Instances of mixing are complicated as they can be overt or covert, structured or unstructured, complex or simple, blended or unblended, and therefore difficult to define.6 Mixed systems present themselves to comparative lawyers in very diverse forms, there are ongoing states of ‘mix’, and a wide scope of knowledge is required to fully analyse this phenomenon. These problems must be addressed when studying mixed legal systems. It can of course be said that these difficulties are applicable to analysis of all legal systems and we know that not only are all modern legal systems mixed to a certain degree, at least as to pedigree, but that many more systems are shifting and in transition as new types of mixes come into being.7 All law is mixed and there are no exceptions. It is only that the mixture is different. Mixed legal systems rely on the theory of legal families, yet challenge it. The process of mix moves a legal system out of the style and the internal logical pattern of one tradition or family of laws. The system first floats in the periphery, poised on the verges of two and sometimes three traditions. It then moves towards its new family, clinging nonetheless to settled peculiarities of the former. So it does not lose the characteristics of the first altogether, and does not acquire totally those of the new one; the levels of combinations and therefore the extent of the mix varies.8 An analysis of any mixed legal system shows that at least two different traditions or cultures are or were in contact and that the end product of the encounters is a system utilising elements of more than one legal tradition. Beyond this, there is no general understanding as to standards for measuring how these systems have come about, the degree of contact between the different traditions or the correct characterisation of the outcome. We are looking at points of contact, intersection or confluence of legal traditions. Yet we do not have a tool of analysis to indicate whether simple rule-borrowing is a significant step in the formation of a mixed legal system, what is the degree of the necessary relationship between elements from different traditions, that is, the underlay and the overlay, the significance of the element of ‘when’ mixing produces a mixed legal system, or the point at which a legal system can properly be called mixed. In historical terms, most mixed legal systems were a consequence not only of strong movements of transmigration of legal institutions and ideas, mostly in the form of impositions, but also of divergent linguistic, communal or religious traditions indigenous to the system itself. In contemporary terms most mixed legal systems are the consequences of cross-fertilisation and direct transposition. Today this phenomenon is due also to the fact that many legal systems are interrelated, such as in the EU, and there are selective mixes. Mixed 6Such mixes can be portrayed along a spectrum. See E. Örücü, ‘A Theoretical Framework for Transfrontier Mobility of Law’, in R. Jagtenberg, E. Örücü & A. De Roo (eds.), Transfrontier Mobility of Law, Kluwer Law International, The Hague, 1995, p. 12. 7For example, in the new South African mix created by the Constitution of 1996, the scope of the mix is extended by regarding traditional law as part of South African law, as well as adding the Canadian and German models to the elements in the mix. 8For the patterns of internal logic and the outcome of movements of elements between system s, see the schematic exposé in Örücü, op. cit., supra n. 1, 339 and 343
legal systems may also be presented therefore, as points of reconciliation In our day all legal systems are mixing in one way or another. Legislatures and courts are looking at other jurisdictions at least for inspiration if not for direct borrowing, in an effort to improve responses to shared human problems. Legal ideasand institutions are crossing borders rapidly. Although this is applicable to all legal systems today, the result of this mixing is not necessarily the creation of a mixed system'.. Then there are new mixes. These are'systems in transition,shifting systems'.The lew forms in these systems challenge the esta blished conceptual and analytical frameworks of comparative law in such aspects as classif ication of legal families, the role and value of receptions theories of convergence and divergence, the dynamism of comparative law, and the concept of the legal system itself. 9 3. Public law in mixed legal systems Is there a specific character to public law in mixed legal systems? As observed earlier, some mixed legal systems such as that of Scotland, are parts of unitary States, some, such as that of Louisiana, are within Federal States. A number of others, such as those of South Africa and Algeria, are independent States. Historically mixed jurisdictions, especially those that were part of a bigger whole, showed this mixed character in the area of private law alone In some of today's mixing systems such as those in Eastern and Central Europe, public law is acquiring a mixed character. In restructuring the State, foreign models are being used here For example, in the area of constitutional law, a selective mixture of some institutions from the American and German models, as well as the French and american models may win the day. another area where this occurs today is criminal law, regarded as part of public law where elements of inquisitorial and accusatorial systems are being reconciled and adopted such as in Albania. So, mixes are taking place in areas other than private law in the new 4. Public law as a 'mixed system We are looking more often now at fields of law that are acquiring a mixite', and public law surely is one of these fields. Much of the future of comparative legal studies will be dealing with public law and especially with public law as a 'mixed system'. In the area of public law, there is a vast amount of transmigration of ideas and reciprocal influence, for example between the USA and Europe, within Europe and between the USA, Europe and South east Asia. So the end result will be the birth of a mixed system as to public law Should comparative legal studies now consider only 'mixite'andmixes'of legal systems and areas of law? Especially within the context of the European Union, both current and future developments in law, whether understood as rules as lawor"law in context,are predominantly approached within the convergence debate. Could we therefore talk of law as transposition? The European Community concept ' freedom of movement of.. can be regarded as extend ing to the freedom of movement of laws and legal institutions. The results of this freedom of movement can be ' mixes, but not all"mixes' produce such major change, change which would qualify an area of law to be called mixed. In the first place, mixes as to content and mixes as to structure produce different outcomes second ly how much of a mix
legal systems may also be presented therefore, as points of reconciliation. In our day all legal systems are mixing in one way or another. Legislatures and courts are looking at other jurisdictions at least for inspiration if not for direct borrowing, in an effort to improve responses to shared human problems. Legal ideas and institutions are crossing borders rapidly. Although this is applicable to all legal systems today, the result of this mixing is not necessarily the creation of a ‘mixed system’. . . . Then there are new mixes. These are ‘systems in transition’, ‘shifting systems’ . . . The new forms in these systems challenge the established conceptual and analytical frameworks of comparative law in such aspects as classification of legal families, the role and value of receptions, theories of convergence and divergence, the dynamism of comparative law, and the concept of the legal system itself.9 3. Public law in mixed legal systems Is there a specific character to public law in mixed legal systems? As observed earlier, some mixed legal systems such as that of Scotland, are parts of unitary States, some, such as that of Louisiana, are within Federal States. A number of others, such as those of South Africa and Algeria, are independent States. Historically mixed jurisdictions, especially those that were part of a bigger whole, showed this mixed character in the area of private law alone. In some of today’s mixing systems such as those in Eastern and Central Europe, public law is acquiring a mixed character. In restructuring the State, foreign models are being used here. For example, in the area of constitutional law, a selective mixture of some institutions from the American and German models, as well as the French and American models may win the day. Another area where this occurs today is criminal law, regarded as part of public law, where elements of inquisitorial and accusatorial systems are being reconciled and adopted, such as in Albania. So, mixes are taking place in areas other than private law in the new mixing systems. 4. Public law as a ‘mixed system’ We are looking more often now at fields of law that are acquiring a ‘mixité’, and public law surely is one of these fields. Much of the future of comparative legal studies will be dealing with public law and especially with public law as a ‘mixed system’. In the area of public law, there is a vast amount of transmigration of ideas and reciprocal influence, for example between the USA and Europe, within Europe and between the USA, Europe and South East Asia. So the end result will be the birth of a mixed system as to public law. Should comparative legal studies now consider only ‘mixité’ and ‘mixes’ of legal systems and areas of law? Especially within the context of the European Union, both current and future developments in law, whether understood as ‘rules as law’ or ‘law in context’, are predominantly approached within the ‘convergence’ debate. Could we therefore talk of ‘law as transposition’? The European Community concept ‘freedom of movement of . . .’ can be regarded as extending to the freedom of movement of laws and legal institutions. The results of this freedom of movement can be ‘mixes’, but not all ‘mixes’ produce such major change, change which would qualify an area of law to be called ‘mixed’. In the first place, mixes as to content and mixes as to structure produce different outcomes. Secondly, how much of a mix 9 Ibid., 351
is necessary to transform a system in such fundamental ways as to justify the word convergence being used? In the formation of the mixed character, when is the ultimate moment? Would the introduction of principles such as ' legitimate expectations'or proportionality, these being the main illustrations used by scholars, have an impact so far reaching that public law in the common law world would change its character, or is it only structural change that would have such implications, that is, for example, the introduction of a separate court hierarchy for administrative law disputes or a written constitution or written procedure(a Code of Civil Procedure)? When can we talk of"cultural reorientating"? How forceful is the argument that transplants'should be avoided but"cross-fertilisat desirable, when in most transmigrations of law the process is a one-way trajectory? Even in cross-fertilisation, there is at least one if not a number of transpositions. The fact is that "cross seldom materialises and it isfertilisation' that takes place. Pollenisation' may be a better word though, since fertilisation aims at the soil, but"pollenisation'at the product. 10 4.I Public lan: Constitutional Cappelletti has analysed trad itions of judicial review of constitutionality in the contemporary world and has given examples of the classical models and of mixes, and has shown that though historically the distinctions were clear, today they are blurred. II The established trad itions in jud icial review of constitutionality can be studied in two broad types. In the first, decentralised, diffuse, incidental, inter partes, concrete, legitimating and retroactive ex tunc, and in the second centralised, concentrated, principaliter, erga omnes, abstract, invalidating and prospective ex nunc. All others, developed under the influence of these two original models, are intermed iary systems. A spectrum contains no review, constitutional review by a special court(the Germanic model for post-review, and the French model for pre-review ) constitutional review by all courts(the American model), and constitutional review in view of the ECHR only( the Netherlands and the peculiar system of positive construction of legislation by courts to avoid incompatibility and restricted to a declaration of incompatibility, set up by the Human Rights Act 1998 in the UK). These could also be viewed as preventative, consultative, indirect or explicit. These are not all pure ord models. There are some 'mixed systems here. Today there are more and more mixed'and intermediary systems developing in addition to the original intermediary systems such as the Mexican, the Irish and the Israeli. If so, which new ones are 'mixed ' and what are their characteristics? How much have they influenced each other? This is an interesting line of inquiry for comparative lawyers looking at cross-fertilisations and mixed legal systems and mixed areas of law In addition to judicial review of constitutionality, another subject of inquiry in this context is the place of human rights in the different constitutional frameworks Now, transposition and fertilisation can be analysed within the area of constructing constitutions also, since most developing constitutional systems have adopted institutions norms and constitutional models from elsewhere both as to content and as to structure loIt may of course be argued that the soil will be changed and possibly enriched by the fertilisation M. Cappelletti, Judicial Review in the Contemporary World, Bobbs-Merrill, Indianapolis, 1971
is necessary to transform a system in such fundamental ways as to justify the word ‘convergence’ being used? In the formation of the mixed character, when is the ultimate moment? Would the introduction of principles such as ‘legitimate expectations’ or ‘proportionality’, these being the main illustrations used by scholars, have an impact so far reaching that public law in the common law world would change its character, or is it only structural change that would have such implications, that is, for example, the introduction of a separate court hierarchy for administrative law disputes or a written constitution or written procedure (a Code of Civil Procedure)? When can we talk of ‘cultural reorientating’? How forceful is the argument that ‘transplants’ should be avoided but ‘cross-fertilisation’ is desirable, when in most transmigrations of law the process is a one-way trajectory? Even in cross-fertilisation, there is at least one if not a number of transpositions. The fact is that ‘cross’ seldom materialises and it is ‘fertilisation’ that takes place. ‘Pollenisation’ may be a better word though, since fertilisation aims at the soil, but ‘pollenisation’ at the product.10 4.1 Public law: Constitutional Cappelletti has analysed traditions of judicial review of constitutionality in the contemporary world and has given examples of the classical models and of mixes, and has shown that, though historically the distinctions were clear, today they are blurred.11 The established traditions in judicial review of constitutionality can be studied in two broad types. In the first, decentralised, diffuse, incidental, inter partes, concrete, legitimating and retroactive ex tunc, and in the second centralised, concentrated, principaliter, erga omnes, abstract, invalidating and prospective ex nunc. All others, developed under the influence of these two original models, are intermediary systems. A spectrum contains no review, constitutional review by a special court (the Germanic model for post-review, and the French model for pre-review), constitutional review by all courts (the American model), and constitutional review in view of the ECHR only (the Netherlands and the peculiar system of positive construction of legislation by courts to avoid incompatibility and restricted to a declaration of incompatibility, set up by the Human Rights Act 1998 in the UK). These could also be viewed as preventative, consultative, indirect or explicit. These are not all pure ‘ordinary’ models. There are some ‘mixed’ systems here. Today there are more and more ‘mixed’ and intermediary systems developing in addition to the original intermediary systems such as the Mexican, the Irish and the Israeli. If so, which new ones are ‘mixed’ and what are their characteristics? How much have they influenced each other? This is an interesting line of inquiry for comparative lawyers looking at cross-fertilisations and mixed legal systems and mixed areas of law. In addition to judicial review of constitutionality, another subject of inquiry in this context is the place of human rights in the different constitutional frameworks. Now, transposition and fertilisation can be analysed within the area of constructing constitutions also, since most developing constitutional systems have adopted institutions, norms and constitutional models from elsewhere both as to content and as to structure. 10It may of course be argued that the soil will be changed and possibly enriched by the fertilisation. 11M. Cappelletti, Judicial Review in the Contemporary World, Bobbs-Merrill, Indianapolis, 1971
Constitutions may epitomise national aspirations, but democracy, the rule of law and human rights and related structures, though born out of different philosophical and cultural antecedents are at the basis of all modern Western constitutions and here even the word Western' has been losing its exclusive meaning since 1990s. The most striking rapprochement is the acceptance of principles such as the rule of law, equality, legal certainty, fairness, non-discrimination and all rights and freedoms protected by the ECHR. Such a rapprochement indicates mixing or 'mixite'. In the areas mentioned this rapprochement is mostly as to content but also at times as to structure It has been noted already that transposing of substance or content rather than of form or structure may not necessarily lead ixed legal system however, but to mixed areas of law 4.2 Public law: administrative In administrative law, the established trad itions of controlling the administration are by ordinary courts or a separate hierarchy of courts, and by ordinary remedies or special remedies. Are these the pure ord inary' models? If so, what is a mixed model of dministrative law? Is a special ordinary court, as the Queens Bench is becoming in England not ord inary and therefore a?? Is administrative law in Scotland also a mixin this Bell, looking at different administrative law traditions in Europe and trying to identify principal features of convergence, first establishes four such traditions: the French-influenced systems, the germanic systems, the common law systems and those of the Netherlands and Scandinavia. 12 Obviously, the traditional map of legal families drawn up for private law does not apply here. He then determines four areas of convergence, in values, in changes under pressure exerted by EC law and ECHr case law, in increased legalisation of administrative relations, and in terminology and concepts. 13 As to the dynamics of this convergence, Bell points to legal education(the SOCRATES programme), the involvement of judges and practitioners, international conventions, EC Directives and ECJ/ECHR case law, and common social problems. 14 Public law as a mixed system in Europe comes to life in the realm of administrative law through the contemporary focus on the protection of legitimate interests, the regime of governmental liabil ity for the non-implementation of EC rules, for restitution of unlawfully paid monies, and proportionality 15 These elements are encountered in many legal systems in Europe together with direct transposition of foreign concepts into legal systems. As already noted, the administrative law principles with continental origins most talked about in the UK are legitimate expectations and proportionality, both included in the Governments guide to Id icial review of administration. The Judge over your Shoulder: 16 12J. Bell, Mechanisms for Cross-fertilisation of Adm inistrative Law in Europe, in J. Beatson& T. Tridimas (eds )New Directions in European Public Law, Hart Publishing, Oxford, 1998, 149-151 3bid,153-154 14/bid,158 See J Schwartze(ed ) Administrative Law under European Influence, Sweet Maxwell/Nomos, London, 1996, and J Schwartze, Towards a Common European Public Law(1995)1 European Public Law, 232 6(marCh2000,TreasurySolicitorsOffice),availableathttp://www.open.gov.uk/tsd/judge.htm
Constitutions may epitomise national aspirations, but democracy, the rule of law and human rights and related structures, though born out of different philosophical and cultural antecedents, are at the basis of all modern Western constitutions and here even the word ‘Western’ has been losing its exclusive meaning since 1990s. The most striking rapprochement is the acceptance of principles such as the rule of law, equality, legal certainty, fairness, non-discrimination and all rights and freedoms protected by the ECHR. Such a rapprochement indicates ‘mixing’ or ‘mixité’. In the areas mentioned this rapprochement is mostly as to content but also at times as to structure. It has been noted already that transposing of substance or content rather than of form or structure may not necessarily lead to a ‘mixed’ legal system however, but to mixed areas of law. 4.2 Public law: Administrative In administrative law, the established traditions of controlling the administration are by ordinary courts or a separate hierarchy of courts, and by ordinary remedies or special remedies. Are these the pure ‘ordinary’ models? If so, what is a mixed model of administrative law? Is a special ordinary court, as the Queen’s Bench is becoming in England, not ‘ordinary’ and therefore a ‘mix’? Is administrative law in Scotland also a ‘mix’ in this sense? Bell, looking at different administrative law traditions in Europe and trying to identify principal features of convergence, first establishes four such traditions: the French-influenced systems, the Germanic systems, the common law systems and those of the Netherlands and Scandinavia.12 Obviously, the traditional map of legal families drawn up for private law, does not apply here. He then determines four areas of convergence, in values, in changes under pressure exerted by EC law and ECHR case law, in increased legalisation of administrative relations, and in terminology and concepts.13 As to the dynamics of this convergence, Bell points to legal education (the SOCRATES programme), the involvement of judges and practitioners, international conventions, EC Directives and ECJ/ECHR case law, and common social problems.14 Public law as a mixed system in Europe comes to life in the realm of administrative law through the contemporary focus on the protection of legitimate interests, the regime of governmental liability for the non-implementation of EC rules, for restitution of unlawfully paid monies, and proportionality.15 These elements are encountered in many legal systems in Europe together with direct transposition of foreign concepts into legal systems. As already noted, the administrative law principles with continental origins most talked about in the UK are legitimate expectations and proportionality, both included in the Government’s guide to judicial review of administration, The Judge over Your Shoulder. 16 12J. Bell, ‘Mechanisms for Cross-fertilisation of Administrative Law in Europe’, in J. Beatson & T. Tridimas (eds.) New Directions in European Public Law, Hart Publishing, Oxford, 1998, 149-151. 13Ibid., 153-154. 14Ibid., 158. 15See J. Schwartze (ed.), Administrative Law under European Influence, Sweet & Maxwell/Nomos, London, 1996, and J. Schwartze, ‘Towards a Common European Public Law’ (1995) 1 European Public Law, 232. 16(March 2000, Treasury Solicitor’s Office), available at http://www.open.gov.uk/tsd/judge.htm
thereby eventually, through the binding nature of ECJ decisions, all member states recei and At the European level, the ECJ selects the "most advanced legal approaches to problems, these principles. Thus, the EC acts as a catalyst and a mediator in the process of producing a public law of a 'mixed nature. Bell remarks that a Eurostandard serves as a point of reference that can be accepted or rejected by the legal systems of the member states However, as this standard is applicable to all EC institutions, there will always be mutual influence. 17 Though European principles may only be used to fill gaps and act as correctives, the reality of 'seepage that occurs, and the force of " infiltration'andcross-fertilisation'is always there. This is reflected in one of the real ities of UK public law: the increasing importance of and the number of cases using judicial review against governmental decisions Already in 1983, Lord diplock declared that judicial review could be summarised in the principles of legality, fairness and reasonableness. 18 Lord Mustill is of the view that [t ]o avoid a vacuum in which the citizen would be left without phe dead ground in a manner, and in areas of public life, which could not have been ection against a misuse of executive powers, the courts have had no option but to occupy the dea foreseen 30 years ago. 19 And, it is now recognised that the High Court in England is a key component of the English public law system. It has even been suggested that it should be named" The Administrative court,20 Examining the balance between public and private interests, rejected for a long time by British judges, is also being established as one of the tasks of the courts, following the European trend. Recently, the Court of Appeal explained this task as: not to impede executive activity but to reconcile its continuing need to initiate or respond to change with the legitimate interests or expectations of citizens or strangers who have relied, and have been common law stance Another development impacting the public laws of the member states of the eu is he the establishment of the European Ombudsman, one of the most important achievements of Maastricht Treaty. This institution was originally to be based on a Spanish proposal supervising the rights of European citizens under Community law at national, regional and municipal levels, but was eventually based on the Danish proposal. Hence, the European Ombudsman does not supervise member states but by setting up principles of good administration for the supervision of European Institutions, a 'pollenisation'and convergence will inevitably occur. The Code of Good Administrative Behaviour prepared by the European Ombudsman lays down the principles in developing a European administrative law as lawfulness, absence of discrimination, proportionality, absence of abuse of power 7Bell, op cit, supra n 12, 161-16 18Orally v. Mackman[ 1983]2 AC 237; and also Council Civil Service Unions v Minister for the Civil Service [1985]AC 374 9Rv. Secretaryof State for the Home Department ex parte Fire Brigades Union [1995]2 All ER 244, at 268 Review of the Crown Office List(The Bowman Report, Lord Chancellors Department, March 2000) 2Rv. North and east Devon Health Authorityex parte Coughlan [2000]2 WLR 622, at647
At the European level, the ECJ selects the ‘most advanced’ legal approaches to problems, and thereby eventually, through the binding nature of ECJ decisions, all member states receive these principles. Thus, the EC acts as a catalyst and a mediator in the process of producing a public law of a ‘mixed’ nature. Bell remarks that a ‘Eurostandard’ serves as a point of reference that can be accepted or rejected by the legal systems of the member states. However, as this standard is applicable to all EC institutions, there will always be mutual influence.17 Though European principles may only be used to fill gaps and act as correctives, the reality of ‘seepage’ that occurs, and the force of ‘infiltration’ and ‘cross-fertilisation’ is always there. This is reflected in one of the realities of UK public law: the increasing importance of and the number of cases using judicial review against governmental decisions. Already in 1983, Lord Diplock declared that judicial review could be summarised in the principles of ‘legality, fairness and reasonableness’.18 Lord Mustill is of the view that ‘[t]o avoid a vacuum in which the citizen would be left without protection against a misuse of executive powers, the courts have had no option but to occupy the dead ground in a manner, and in areas of public life, which could not have been foreseen 30 years ago.’19 And, it is now recognised that the High Court in England is a key component of the English public law system. It has even been suggested that it should be named ‘The Administrative Court’.20 Examining the balance between public and private interests, rejected for a long time by British judges, is also being established as one of the tasks of the courts, following the European trend. Recently, the Court of Appeal explained this task as: ‘not to impede executive activity but to reconcile its continuing need to initiate or respond to change with the legitimate interests or expectations of citizens or strangers who have relied, and have been justified in relying, on a current policy or extant promise.’21 This shows the widening scope of ‘legitimate expectations’ from procedure to substance and a departure from the strictly common law stance. Another development impacting the public laws of the member states of the EU, is the establishment of the European Ombudsman, one of the most important achievements of the Maastricht Treaty. This institution was originally to be based on a Spanish proposal supervising the rights of European citizens under Community law at national, regional and municipal levels, but was eventually based on the Danish proposal. Hence, the European Ombudsman does not supervise member states but by setting up principles of good administration for the supervision of European Institutions, a ‘pollenisation’ and a convergence will inevitably occur. The Code of Good Administrative Behaviour prepared by the European Ombudsman lays down the principles in developing a European administrative law as lawfulness, absence of discrimination, proportionality, absence of abuse of power, 17Bell, op. cit., supra n. 12, 161-162. 18Orally v. Mackman [1983] 2 AC 237; and also Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374. 19R v. Secretary of State for the Home Department ex parte Fire Brigades Union [1995] 2 All ER 244, at 268. 20Review of the Crown Office List (The Bowman Report, Lord Chancellor’s Department, March 2000). 21R v. North and East Devon Health Authority ex parte Coughlan [2000] 2 WLR 622, at 647
mpartial ity and independence, objectivity, legitimate expectations(legal certainty)and consistency, fairness, courtesy, reply to letters in the language of the citizen to the competent service of the Institution the right to be heard and to make statements, er acknowledgment of receipt and indication of the competent official, the obligation to trans reasonable time-limit for taking decisions, the duty to state the grounds of decisions, indication of possibilities of appeal, notification of the decision, data protection, keeping of adequ ds and public access to information, to do ents and to the code 22 Th assumption here is that most of the member states already have these principles at the national level. Nevertheless, standards, especially those related to transparency issues, should e raised and discretionary powers should be more effectively controlled Institutions of public law in the EU change under European and national political pressures Elsewhere, the change comes under national and international political pressures alongside general reasons for change, such as efficiency, chance, prestige and affiliation to certain models for political or economic reasons. The convergence that is seen in both constit utional and administrative law reflects elements of both transposition and cross-fertilisation. In dministrative law, most changes regard content rather than structure, and in constitutional law they regard both structure and content Change is apparent in procedural matters as well development is to be seen in the area of values. however 2, med that the clearest common There are common influences in this area also. It can be clair The history of law is largely the history of legal transpositions, often from a number of sources, thus law is a constructive synthesis. Though divergence is fruitful and the differences between the similars are especially interesting, there is a move towards a bridging,, a harmony. This is seen in public law mostly in stud ies of globalisation, regulation, agencies, rule-making and transparency Public law in Europe today is a mixed system', civilian in origin, enriched by common law principles and innovations, and with true cross-fertilisation taking place. As noted above, in the UK this has led, apart from individual principles entering UK law, to the expansion of dicial review and to the changing role of the courts. among the common law innovations leading to a market-driven c governance which has influenced both German and EC laws, one could mention corpor convergence, andthe law of professional privilege andthe right to be heard, both exported to the eCJ. again under British influence, the continental emphasis on the privileges of the administration undertaking public services is moving towards stressing individual rights, and yet the protection of the individual under a human rights framework in the UK springs from a continental understand ing In the UK, the Human Rights Act 1998, democracy, majority rule and the notion of limited government are now fund amental areas of study, a study undoubtedly influenced by continental thinking, as is the principle of proportionality'to be predominantly employed in the area of human rights Most important cross-fertilisations and transpositions take place at the level of basic ideas This does not in itself create mixed legal systems, but an area of law could become a mixed system in this way See 'Code of Good Adm inistrative Behaviour(01/1/98/0V) handout by j Soderman, the European Ombudsman 23See Bell, op cit, supra n 12,166
impartiality and independence, objectivity, legitimate expectations (legal certainty) and consistency, fairness, courtesy, reply to letters in the language of the citizen, acknowledgment of receipt and indication of the competent official, the obligation to transfer to the competent service of the Institution, the right to be heard and to make statements, a reasonable time-limit for taking decisions, the duty to state the grounds of decisions, an indication of possibilities of appeal, notification of the decision, data protection, keeping of adequate records and public access to information, to documents and to the Code.22 The assumption here is that most of the member states already have these principles at the national level. Nevertheless, standards, especially those related to transparency issues, should be raised and discretionary powers should be more effectively controlled. Institutions of public law in the EU change under European and national political pressures. Elsewhere, the change comes under national and international political pressures alongside general reasons for change, such as efficiency, chance, prestige and affiliation to certain models for political or economic reasons. The convergence that is seen in both constitutional and administrative law reflects elements of both transposition and cross-fertilisation. In administrative law, most changes regard content rather than structure, and in constitutional law they regard both structure and content. Change is apparent in procedural matters as well. There are common influences in this area also. It can be claimed that the clearest common development is to be seen in the area of values, however.23 The history of law is largely the history of legal transpositions, often from a number of sources, thus law is a constructive synthesis. Though divergence is fruitful and the differences between the similars are especially interesting, there is a move towards a ‘bridging’, a harmony. This is seen in public law mostly in studies of globalisation, regulation, agencies, rule-making and transparency. Public law in Europe today is a ‘mixed system’, civilian in origin, enriched by common law principles and innovations, and with true cross-fertilisation taking place. As noted above, in the UK this has led, apart from individual principles entering UK law, to the expansion of judicial review and to the changing role of the courts. Among the common law innovations, one could mention corporate governance which has influenced both German and EC laws, leading to a market-driven convergence, and ‘the law of professional privilege’ and ‘the right to be heard’, both exported to the ECJ. Again under British influence, the continental emphasis on the privileges of the administration undertaking public services is moving towards stressing individual rights, and yet the protection of the individual under a human rights framework in the UK springs from a continental understanding. In the UK, the Human Rights Act 1998, democracy, majority rule and the notion of limited government are now fundamental areas of study, a study undoubtedly influenced by continental thinking, as is the principle of ‘proportionality’ to be predominantly employed in the area of human rights. Most important cross-fertilisations and transpositions take place at the level of basic ideas. This does not in itself create mixed legal systems, but an area of law could become a mixed system in this way. 22See ‘Code of Good Administrative Behaviour ‘ (01/1/98/OV) handout by J. Söderman, the European Ombudsman. 23See Bell, op. cit., supra n. 12, 166
5. Conclusion Legal systems are flexible and rationality prevails, so however much they are bound to the internal logical unfold ing of their own legal trad ition or family, through transpositions and fertilisation, transmigration of ideas, institutions and structures occurs and causes legal systems as a whole, and areas of law in particular, to change. Legal systems are driven by their internal dynamics and by the external dynamics of transmigration. This movement and change can be dubbed 'convergence or ' divergence within harmony. The results are mixed legal systems and areas of law that are themselves mixed systems i would therefore maintain that the mixed legal systems of our day and, in the area covered by this paper, public law as a mixed system, are subjects that will increasingly interest comparative lawyers of the future Lord irvine observes: Through these processes of cross-fertilisation we begin to see the emergence of common principles of European public law which, in turn, help to ensure that and transnational public bodies.. Our constitutional landscape Is clag g,ano ith national all European citizens benefit from certain bench-mark standards as they interact wi dministrative law in Britain and Europe24 are growing closer together. 25 The extent to which we are mixing, melting, blending, being re-potted and then solidifying into the new shape as we cool down will be interesting to watch. But since this is an ongoing process, the view we take of the outcome can only be at one moment in time when we look at a legal system or an area of law. By the time we make our diagnosis, there will have been new movements and new mixes 24Note however, that the div ide persists! 25Lord Irvine of Lairg, "The Influence of Europe on Public Law in the United Kingdom, in B.S. Markesinis (ed ) The Coming Together of the Common Law and the Civil Law, The Clifford Chance Millennium Lectures, Hart Publishing, Oxford, 2000, 24-2
5. Conclusion Legal systems are flexible and rationality prevails, so however much they are bound to the internal logical unfolding of their own legal tradition or family, through transpositions and fertilisation, transmigration of ideas, institutions and structures occurs and causes legal systems as a whole, and areas of law in particular, to change. Legal systems are driven by their internal dynamics and by the external dynamics of transmigration. This movement and change can be dubbed ‘convergence’ or ‘divergence within harmony’. The results are mixed legal systems and areas of law that are themselves mixed systems. I would therefore maintain that the mixed legal systems of our day and, in the area covered by this paper, public law as a mixed system, are subjects that will increasingly interest comparative lawyers of the future. Lord Irvine observes: ‘Through these processes of cross-fertilisation we begin to see the emergence of common principles of European public law which, in turn, help to ensure that all European citizens benefit from certain bench-mark standards as they interact with national and transnational public bodies. . . . Our constitutional landscape is changing, and administrative law in Britain and Europe24 are growing closer together.’25 The extent to which we are mixing, melting, blending, being re-potted and then solidifying into the new shape as we cool down will be interesting to watch. But since this is an ongoing process, the view we take of the outcome can only be at one moment in time when we look at a legal system or an area of law. By the time we make our diagnosis, there will have been new movements and new mixes. 24Note however, that the divide persists! 25Lord Irvine of Lairg, ‘The Influence of Europe on Public Law in the United Kingdom’, in B.S. Markesinis (ed.), The Coming Together of the Common Law and the Civil Law, The Clifford Chance Millennium Lectures, Hart Publishing, Oxford, 2000, 24-25
