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 thePUBLIC 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