See below a summary of the newly published papers of the World Congress on Mixed Jurisdictions.

To order copies, contact Bonnie Graham of the Tulane Law Review, bgraham@law.tulane.edu

TULANE LAW REVIEW

Volume 78 December 2003 Nos. 1 & 2

CONTENTS

FIRST WORLDWIDE CONGRESS ON MIXED JURISDICTIONS
Salience and Unity in the Mixed Jurisdiction Experience: Traits, Patterns, Culture, Commonalities

Salience and Unity in the Mixed
Jurisdictions: The Papers of
the World Congress ................. Vernon Valentine Palmer ...... 1

The Tulane Law Review has graciously permitted me to write a few words of introduction about the articles of the First Worldwide Congress on Mixed Jurisdictions. Before beginning that pleasant task, however, I must thank the Review, not merely for extending this privilege but more importantly for undertaking the monumental task of editing and publishing the entire set of articles. The number and international breadth of the articles has undoubtedly taxed the Review's resources, but in the end these efforts have produced a lasting contribution to the study of mixed jurisdictions. This is in keeping with the finest traditions of the Review and its continuing devotion to comparative law.

By way of introduction to the articles, I begin with the occasion which brought these authors together.The World Congress was in many ways an historic and experimental event. It was, I believe, the first time jurists from these far-flung places had ever gathered for the purpose of studying and celebrating their own individuality. Their aspirations were summed up in the title given to the Congress: Salience and Unity in the Mixed Jurisdiction Experience . In four days of meetings and discussions in New Orleans , the Congress served as an international pedestal to advance and promote a long-neglected subject. Held under the auspices of the Tulane Law School and the Eason-Weinmann Center of Comparative Law, the Congress was sponsored by twenty-one law faculties from the mixed jurisdictions (seven from South Africa alone). In addition to scholars and delegates sent from these faculties, it was widely attended by comparative lawyers from Europe, North America, Africa, Latin America, and Asia, thanks to the joint sponsorship of three international organizations—the International Academy of Comparative Law, the American Society of Comparative Law, and the International Association of Legal Science. The result was a large, diverse gathering of jurists of different cultures, traditions, and backgrounds who had not previously crossed paths and, generally speaking, had not viewed their own law in relation to other mixed jurisdictions. Given the eclecticism of the group, one might have been forgiven for wondering—would they understand one another? Would they have much of anything in common? Such questions or doubts were quickly answered. The Congress was a resounding success for the participants, both socially and intellectually. Any fears of incomprehension—of mentalités glancing off one another—were immediately dissipated. Mixed jurisdiction jurists are separated by oceans, by history, and by many cultural and linguistic differences, yet they tend to understand one another very easily and do not feel alien in each other's legal culture. They are brought together, it seems, by their knowledge of both common law and civil law and how these traditions interact within the same system, and the English language serves as their channel of international communications. Their desire for closer, more permanent relations led to the founding of a new organization, The World Society of Mixed Jurisdiction Jurists , and steps are already underway to convene a second World Congress in Scotland in 2006.

Coming to the articles themselves, I only wish to make three very general remarks. The first is to observe that the issues and themes in these articles are not those discussed in general comparative law venues. Indeed the articles center upon themes which are distinctively “mixed jurisdiction” and typically receive no attention in other forums. Perhaps never before has such a concentration of research been published in any other journal. To illustrate, I will single out, somewhat unfairly to the others, just a few titles. The first article by Professor Kenneth Reid is entitled The Idea of Mixed Legal Systems , and here we learn where the concept originated and how it evolved. Little more than a century old, this invented term is the product of a failure of classification among legal families which, for all its shortcomings, has become a fixture in the language of comparativists. Professor Reid's magisterial treatment gives us a frontispiece for the contributions which then follow on the particularized aspects of the mixed jurisdiction experience. Dean Efrén Rivera Ramos's article, The Impact of Public Anglo-American Institutions and Values on the Substantive Civil Law , explores a very basic institutional tension found in all mixed jurisdictions: courts and constitutions conceived in the Anglo-American mold not only introduce common law method and style but revise the content of the civil law as well. New constitutional values such as equality, privacy, and dignity enter the private civil law and literally rewrite those rules. Daniel Visser's Cultural Forces in the Making of Mixed Legal Systems exposes the clash of cultural forces within the mixed-law environment. He discusses the cultural champions who have sought to establish or preserve the hegemony of one legal tradition over the other, sometimes waging bellum juridicum , other times leading or opposing renaissance movements, but at all times taking part in a highly interesting mixed jurisdiction phenomenon. The other articles deal with equally pointed questions: how autonomous law develops that is neither civil nor common, the acute linguistic problems caused by mixed sources of law, the clash of two methodologies and its outcome, the costs and benefits of having dual laws, and the future direction and life cycle of such systems. These treatments have a certain freshness from a comparative point of view and the articles establish a provisional framework for further work in the emerging field of mixed jurisdiction studies.

My second general remark is to point out that mixed jurisdictions are clearly becoming of greater interest in the wider world and the audience for these articles is presumably growing as well. As harmonization efforts and globalization trends continue, there is a greater need for accommodation between common law and civil law ideas and institutions. European harmonization, for example, necessarily means accommodating and mixing common law and civil law. A blend of the two laws is already emerging in the national systems and also at the European level. It seems increasingly probable, as Professor Hein Kötz predicts in The Value of Mixed Jurisdictions , that ultimately Europe will become some sort of mixed jurisdiction herself and therefore “the experience of the existing mixed jurisdictions will be most germane to Europe's efforts to make headway in that process of gradual rapprochement.” This could mean that the classic mixed jurisdictions, rather than Europe 's stepchildren, are actually the forerunners of her future. What can be learned from the mixed jurisdiction experience, however, depends largely upon what the mixed jurisdictions can teach about themselves. Much will depend upon the quality of research and what it can reveal.

This leads me to a final remark concerning the methodological outlook of the authors. In one sense the high quality of comparative law in these articles is simply what one expects to occur when a group of illustrious writers is asked to address interesting themes. In fact, however, a contributing cause lies in their methodology. Comparative law written by mixed jurisdiction jurists has many interesting advantages and here we have an example. The mixed systems are living incubators of comparative law. The fact that civil and common law are intimately associated and embedded within each framework of laws prompts these writers to make explicit comparisons, as opposed to mere parallel descriptions which leave the intellectual work to others. Furthermore their experience inside the two traditions is immediate and day-to-day. Their double immersion in both traditions, though perhaps only waist deep, gives rise to a surer comparative touch than a so-called pure civilian would normally acquire through study of the common law or a common lawyer would acquire through study of the civil law. But more importantly, a good number of these articles follow a cross-comparative method which the Congress organizers strongly encouraged the authors to adopt. Long advocated by the late Sir Thomas Smith and Justice José Trias Monge, this more cosmopolitan approach seeks international comparisons between the mixed jurisdictions themselves as a means of eliciting insights into their unity and differences. Rather than the usual mother-country comparisons or an internal comparison restricted to common law and civil law sources within a given system, this approach accepts the experience of sister jurisdictions as potentially relevant to the solution of legal problems and as a vital means of understanding legal phenomena occurring throughout the mixed systems. It is a method which opens windows in the closed laboratories of comparative law. It is one of the reasons why these articles may be a turning point in the study of mixed jurisdictions.

The Idea of Mixed Legal Systems ....... Kenneth G.C. Reid ...... 5

Although the idea of mixed legal systems can be traced back to the beginning of the twentieth century, it is only in recent years that it has acquired significant interest and support. This Article describes and evaluates the mixed legal systems movement. From its beginnings as an occasional term of comparative law, the idea of mixed systems became a means, within those systems, of resisting assimilation with Anglo-American common law. The leading figure in this neo-civilian campaign was T.B. Smith of Scotland . Much more recently, mixed systems have been seen both as a possible model for harmonization of civil law and common law in Europe and as a ready source of comparative material for the systems themselves. This Article considers the nature of the “mix” in the law of mixed systems and the possibilities for future development and cooperation.

Cultural Forces in the Making
of Mixed Legal Systems ................................ Daniel Visser .... 41

This Article attempts to give an account of the role of cultural forces (such as language, education , perceptions of identity, political orientation, values, and intellectual inspiration) in the making of mixed legal systems. Examples are drawn from the South African experience, but they are intended also to be representative of the experience in other mixed jurisdictions. The Article pays particular attention to the role of “legal opinion makers” in directing which cultural factors most affect a legal system at a particular point in time. In addition to demonstrating the formative role of culture in mixed legal systems, the study compares the common law and the civil law on the basis of Geert Hofstede's “dimensions of culture” and comes to the conclusion that these two traditions are, culturally speaking, more compatible than is often realized. Finally, the article takes sides in the debate between Alan Watson and Pierre Legrand, arguing that, because culture is always learnt, it can also be unlearnt; and that therefore no existing cultural realities need ever be permanent obstacles to change.

Mixing It Up ............................................... H. Patrick Glenn .... 79

The contemporary voices of jurists and judges of different legal traditions, within mixed jurisdictions, is an indication of ongoing mixité . The existence of dialogue is an indication of meaningful comparison and commensurability. The content of the dialogue is most fruitfully directed towards the merits of particular legal propositions. Arguments which reify concepts of legal culture, or legal systems, or legal civilizations, and urge their necessary preservation, are philosophically untenable, self-defeating, and incompatible with the underlying character of human organization. The effect of ongoing dialogue is to open the range of available legal sources.

The Judge and Jurist in Scotland :
On the Verge of a Second Renaissance .......... Esin Örücü .... 89

Scotland has a simple mixed system with an unusual history that reflects the migration of law from different sources occurring through seepage, imitation, inspiration, reception, and imposed reception. Her mixedness is ongoing and the role of Scottish jurists in the process has been significant at different stages of her history. The distinctiveness of Scots law, though always remarked upon, has not always been appreciated, as it existed within a unitary state with divergent legal systems.

Today with devolution and the impact of the Human Rights Act , Scotland is poised to catch a new opportunity. There is renewed interest in the state of Scots law, an interest growing also in Europe where it is sometimes regarded as a model for the new ius commune that is emerging. Scottish scholars' contribution to various European projects is impressive.

The mixedness of Scots law that became prominent at the beginning of the eighteenth century had its first renaissance in the early twentieth century with attempts to preserve its separateness and distinctiveness. That renaissance bears the mark of the “purists” and reflects Scottish nationalism.

This Article suggests that the twenty-first century will be the second renaissance for Scots law. This period will show its distinctiveness and mixedness but not its separateness. The pragmatism that will take Scots law forward will still use the mixedness but build on it, thus opening Scotland to other influences and allowing cross-fertilisation rather than adherence to a one way trajectory. This can only be done if the Scottish judge and jurist can be dynamic and creative as Scots law faces this second renaissance. This Article also probes into the question: What will be the nature of this ongoing “mix” in our century?

Linguistic Factors into the Mix:
The South African Experience
of Language and the Law ............................... Max Loubser .. 105

The South African experience of language and the law has been one of multilingualism, with Dutch, English and Latin as source languages. Afrikaans developed from Dutch as the only indigenous language in Africa that became a developed legal language. Afrikaans could draw on the developed legal terminology of Dutch and German, but nevertheless its rapid development as a fully-fledged legal language with a comprehensive legal terminology and legal literature is a remarkable phenomenon. Today English and Afrikaans are the only developed legal languages in South Africa .

Where the source languages match the living legal languages the original legal sources will tend to keep feeding in to the legal system, but where this match is no longer found or is being eroded, as has happened in South Africa with Dutch and Latin, changes are likely to occur.

Officially “functional multilingualism” has been adopted as policy in South Africa . Constitutionally, government is required to use at least two languages, for legislation and generally. Where effective operation of government requires comprehensive communication, the information will be published in all the official languages. In other cases the policy is to publish government documents in at least six official languages. No specific policy has yet been adopted for the use of languages in the courts.

The obvious difficulties of affording equal status to eleven official languages have lead to pressure for the use of a single legal language, English, accessible to if not spoken by the mass of the people. The possible consequences of the tendency towards using English as the legal lingua franca are that the courts will increasingly look towards English-language jurisdictions for comparative purposes and that the relevance and influence of the Roman-Dutch authorities and the civilian legal heritage will in the long-term decline. However, there is considerable inertia in a legal system that has developed over centuries and the South African legal system is likely to retain its mixed character.

It is suggested that a flexible “non-diminution” approach to the use of languages in the legal system has much to commend it. Such an approach would leave scope for language diversity and the further development of languages by extended translation services, so that black languages may be used as languages of record in the courts where required, without diminution of the use of Afrikaans for legislation and as a language of record.

Language and Style in
a Mixed System ......................... Celia Wasserstein Fassberg .. 151

This Article examines problems relating to language in a mixed legal system. It suggests, first, that the mixed nature of a legal system does not, in and of itself, create a special problem of language, namely one that is different from the usual problem of the relationship between spoken language and professional language. It then distinguishes between mixed systems existing in multilingual societies whose languages correspond to the mixed legal sources and mixed systems existing in unilingual or multilingual societies in which the legal language is different from that of any of the source languages of the system.

Israel is an example of the latter; it is a mixed system whose legal language does not correspond with either of its primary historic sources. The Article describes how it emerged in this form. It then proceeds to examine the relationship, in Israeli law, between types of sources and styles of legal thought, expression, and rhetoric. This examination reveals, among other things, that many of the characteristics of a legal system are the product of circumstance rather than design, and that random mixing of elements from different systems can produce unique and unforeseen consequences.

Nationalism in a Mixed Jurisdiction
and the Importance of Language
( South Africa , Israel , and
Quebec/Canada) ............................................ William Tetley .. 175

In this Article, Professor Tetley first defines and examines the characteristics of the “civil law,” the “common law,” “legal systems,” “mixed legal systems,” and “mixed jurisdictions,” focusing particularly on those jurisdictions where the common law tradition has encountered the tradition of the civil law (either codified, as in Quebec and Louisiana, or uncodified, as in Scotland and South Africa). Acknowledging both the challenges and the advantages of mixed jurisdictions, he then reviews the history and development of three of them— Israel , Quebec/Canada, and South Africa —and demonstrates how a number of key factors are crucial to strengthening and fostering their development. Especially important are the following factors: the presence (in federal states) of two legislatures, dual court systems, universities and specialized law institutes, and, above all, the recognition and use of two or more official languages in legislation, judicial proceedings and documents, government services, and education. Conversely, he shows how the absence of such elements can leave a mixed jurisdiction prey to gradual erosion through the influence of its more powerful legal tradition. He also considers the role of language within the contemporary European Union and further indicates how maritime law is itself a complete, mixed legal system drawing on a rich heritage of civilian and common law components, enshrined and expressed in more than one language. He concludes with the challenging view that two or more languages may well be essential to the viability of mixed jurisdictions today, as well as the more widespread acceptance of the concept of two nations within a single State.

Common Law Influences on the
Law of Contract and Unjustified
Enrichment in Some Mixed
Legal Systems ......................................... Jacques du Plessis .. 219

There are indications that mixed legal systems are characterised by certain “patterns” of reception, which reflect that the common law generally influenced certain areas of law more than others. One of the most interesting questions raised in recent discussions about mixed legal systems is what factors possibly could have influenced or given rise to these patterns. To assist in answering this question, this Article examines various examples of common law influence in the areas of contract and unjustified enrichment, namely (1)  causa and consideration; (2) promissory estoppel and reasonable reliance; (3) offer, acceptance, and the “mailbox” theory; (4) undue influence and good faith; (5) anticipatory breach and repudiation; (6) and the condictio indebiti . These examples reflect that at least five factors affect the extent of common law influence on these branches of law, namely (1) openness of the existing law to common law influence due to gaps; (2) openness of the existing law to common law influence due to perceived similarities with the common law; (3) divergences in the existing law which enable the common law to influence it to follow a particular direction; (4) the impact of the individual; and (5) social, economic, or cultural factors. In conclusion, certain observations are made about the quality of the law that arose from these processes of reception.

Interpenetration of Common Law
and Civil Law as Experienced in
the South African and
Scottish Law of Property ................. C.G. van der Merwe .. 257

The first Part of this Article examines the phenomenon of interpenetration or cross-fertilization that occurs between common law and civil law concepts in mixed legal systems. In mixed legal systems interpenetration seems to have been disproportionate with the scales weighing heavily in favour of penetration of common law notions into civilian systems. This lopsidedness can most probably be explained by the superior authority which English law, as the law of the conqueror, commanded and the fact that English law was well documented in tonnes of legal literature.

The second Part examines the inroads of English law into South African property law, labelled the most unassailable domain of civilian jurisprudence. The English doctrine of natural rights in land paved the way for the harmonization of the English law of nuisance with the civilian doctrine of subjective rights by identifying the right infringed in nuisance as the natural right of a landowner to a comfortable and convenient lifestyle. This doctrine also led to the acceptance of the landowner's right to lateral and subjacent support from his or her neighbour and the recognition in South African water law that the State was the dominus fluminis . This doctrine, combined with the recognition of so-called trade fixtures after the Industrial Revolution, also influenced the South African law of fixtures in ascribing a significant role to the intention of the owner of the movable attached to land. This Part is concluded by a description of how the common law based Conveyancing (Strata Titles) Act of New South Wales on condominiums was transplanted to South Africa in the form of the Sectional Titles Act and woven seamlessly into the civilian fabric of the South African law of property.

The third Part deals with the Scottish case Dyce v. Hays , an appeal from the Scottish Court of Session (1849) to the English House of Lords (1852), which had a material influence on the common law of easements. This Scottish decision, inter alia, establishes a clear distinction between private easements and rights to village greens and playgrounds dedicated to the public. It further endorses the principles that new instances of easements could develop without violence to basic principles when lands are put to novel uses and that easements should benefit the dominant land and not merely satisfy the fancies of dominant owners. Finally it demonstrates that servient property can never be encumbered to such an extent that the rights of the servient owner become totally illusory. These principles have since been enshrined in numerous English and Australian cases.

In conclusion it is suggested that more frequent use of the Internet and the employment of research assistants by judges may make future mutual interpenetration of common law and civil law principles less lopsided.

The Odd Couple: Common Law
Procedure and Civilian
Substantive Law ..................................... Stephen Goldstein .. 291

This Article analyzes what can be learned from mixed jurisdictions concerning the nature of procedural law and the relationship between procedural and substantive law. The most striking fact about mixed jurisdictions is that, with the exception of Scotland , the prevailing procedural law is common law despite the fact that the substantive private law in these jurisdictions is primarily civil law.

This situation raises two basic questions. Why the hegemony of common law? And, what does this situation tell us about the relationship between procedural and substantive law?

As to the first question, the Article concludes that the hegemony of common law procedure is primarily the result of the emotional, almost religious, attachment of the adherents of common law procedure to their system. As to the second question, the Article concludes that mixed jurisdictions demonstrate that procedural law is sufficiently independent of substantive law so that, in general, different systems of procedural law may work relatively well with different systems of substantive law and, in particular, that common law procedure may operate reasonably well in a system of substantive civil law.

Finally, the Article concludes that the coexistence of common law procedure and substantive civil law in mixed jurisdictions does not seem to have affected the procedural law of such systems. In addition, while there are some examples of the effect of common law procedure on the civilian substantive law of some mixed jurisdictions, they are relatively few. However, it may very well be that there is a greater, indirect influence of common law procedure on civilian substantive law in the sense that procedure gives rise to a judicial style which, in turn, engenders habits of legal thought.

Reception Without Integration?
Floating Charges and
Mixed Systems ......................................... George L. Gretton .. 307

Conceptual coherence is not the only value for a legal system, but it is nonetheless a value. The antithesis between conceptualism and pragmatism is a false one. The incoherent is the unpragmatic. When legal ideas are imported into a system, they need to be conceptualised so as to cohere with the general law of that system, especially if the import is from a common law system into a civil law or mixed one. In importing commercial law from England , Scotland has too often failed to ensure that such law is harmonised with the general law. The story of the floating charge in Scotland is an illustration. In this Article, the modern history of security interests in movable property in Scots law is traced and the problems associated with the floating charge are identified. The Scottish experience is also compared with the experiences of Quebec and South Africa .

Legal Methodology in Some
Mixed Jurisdictions ................................ Jos é Tr í as Monge .. 333

In this Article, published posthumously, the author traces the history of judicial methodology in mixed jurisdictions. In particular, the author examines the experiences of Puerto Rico , Louisiana , the Philippines , and Quebec —jurisdictions in which the civilian tradition of Spain or France preceded incorporation of the common law of either the United States or England .

Apart from substantive differences, civilian and common law modes of adjudication differ markedly: civil law judges, unlike their common law counterparts, are members of a career corps, eschew the citation of precedent, and do not sign their opinions. Similarly, civil and common law courts look to differing categories of sources to guide their adjudicatory projects. Mindful of these differences, the author describes the arrival of common law methodology, noting that while the choice of method would normally be a question for the affected jurisdiction to decide, this was not the case. Instead the British or American sovereign created judicial institutions on the Anglo-American pattern (or transformed existing civilian courts to that pattern), and their appointed common-law trained judges developed legal methodologies consistent with their own traditions and prejudices. Afterwards they developed special techniques and rationalizations for assimilating the common law which the author describes as the Fantasy of the Superior Law, the Fantasy of the Wise Mix, and the Fantasy of the Unification of the Law.

The Article concludes with the observation that while a civilian renaissance has to some degree redressed this assimilation of the past, the civil law in these mixed systems should be regarded as an endangered specie. To protect it, the author calls for a new methodology based upon expanded civilian research, fully informed comparisons, and creation of a strong presumption disfavoring the use of common law materials in the interpretation of civil law provisions.

The Impact of Public Anglo-
American Institutions and Values
on the Substantive Civil Law:
Comments on Judge Aharon
Barak's Keynote Address ................. Efrén Rivera Ramos .. 353

This Article illustrates how Anglo-American legal institutions and constitutional values are reflected in the mixed jurisdiction of Puerto Rico . It gives concrete examples of how, over the past century, Puerto Rico has incorporated public values and, more specifically, constitutional values and principles into its civil law. The author further argues that the impact of public law values and principles, including constitutional human rights, on private law is evident today not only in mixed jurisdictions, but in many common law and civil law jurisdictions as well. He refers to an A intense process of constitutionalization worldwide. In this sense, what some mixed jurisdictions, like Puerto Rico, started to experience during the early twentieth century has become the norm in many legal systems. The Article refers to the structural and normative features of both common law and civil law systems, as well as other global phenomena, that allow for this development. Finally, the author makes the point that fundamental political values shared by both common law and civil law countries may be more determinative of legal outcomes than the formal legal traditions to which they belong. He asks a basic question: should notions of substantive justice have more weight in deciding legal issues than considerations relating to the formal aspects of common law and civil law systems?

Human Rights and Private Law
in Scotland: A Response
to President Barak ............................ Hector L. MacQueen .. 363

The Article discusses the domestication of the European Convention on Human Rights as a result of the Human Rights and Scotland Acts of 1998. Developments to date may support the view that judges rooted in either purely common or civil law systems find it harder to deal with human rights issues than those who come from mixed, and perhaps therefore more flexible, legal backgrounds. The effects of the two Acts of 1998 include a horizontal one in private law; that is, human rights protect the individual (including juristic persons) not only against the State (vertical effect) but also against other private parties. The model that exists in Scotland is one of indirect horizontal effect, but nonetheless makes use of what President Barak calls the “application to the judiciary” model. It is argued that Convention rights are likely to permeate the common laws of Scotland and England rather slowly over time, consistently with their traditional case-by-case development under which the relevance of the rights to common and private law issues will gradually emerge for assessment and have their compatibility then determined. The argument is illustrated by more detailed examination of the ECHR article 8 right to privacy, which is being developed in the United Kingdom mainly by way of extending the existing action of breach of confidence. In Scotland there have also been arguments based on the actio injuriarum . The potential for more radical development is further limited by the nature of the European Convention itself and also by the lack of open-ended norms such as good faith, public policy, and abuse of right in both Scots and English common law.

Requiem for a Civil Code:
A Commemorative Essay ...................... A.N. Yiannopoulos .. 379

This Essay is dedicated to the memory of the redactors of the Louisiana Civil Code. It highlights milestones in Louisiana legal history from 1804 to the present time and traces the birth, growth, cultural influence, and decline of the Louisiana Civil Code. A nebula of laws, derived from the eighteenth-century civilian traditions of France and Spain , gave birth to a nova, the Louisiana Digest of 1808. In turn, that star ceded its place to two even brighter stars in the Southern Sky, the Louisiana Civil Codes of 1825 and 1870. More than a century after its enactment, the 1870 Code disintegrated into a collection of statutes best described as a Digest of laws or as a conglomeration of mini-codes. An uncatalogued creation of civilian doctrine, legislation, and jurisprudence in a mixed jurisdiction, the Louisiana Civil Code is still the most important book of private law for those who live and die under its commands. Requiem is a celebration of life rather than a commitment to forgetfulness. In Louisiana , there is still hope for the civilian tradition: the Phoenix is reborn from its own ashes.

Looking Forward to a Mixed
Future: A Response to
Professor Yiannopoulos .................. Hector L. MacQueen .. 411

The Article argues that it is contrary to the spirit of mixed legal systems to analyse them on the basis that one part of the mix is good and the other bad. Instead, mixed systems need to be evaluated on their own terms—that is, as neither civil law nor common law—and analysts must accept that a mixed past means a mixed future. In thinking about common law influences, we need to be aware that English law has moved a long way since the early nineteenth century when it first began to influence many of the mixed systems. It could be argued that English private law has been becoming a mixed system itself in that period of nearly two centuries, while the civil law of Europe has been exposed to influences that look common law in nature. In the mixed system of Scots law, at least three types of development can be identified. Significant areas of Scots law that have a civilian origin have never been seriously challenged from a common law perspective. Scots law has also devised distinctive solutions as a mixed system, and “re-civilian-isation” is also apparent in certain other areas. The future of mixed systems is most likely to be one of continuing “mixed-ness” rather than either common law or civil law dominance.

“Say Not the Struggle Naught
Availeth”: The Costs and
Benefits of Mixed
Legal Systems ............................. Lord Rodger of Earlsferry .. 419

In the following Article, developed from comments delivered at the Congress on Mixed Jurisdictions, Lord Rodger of Earlsferry highlights several unique benefits of legal systems which have been influenced by and draw from both civil and common law traditions.

The author discusses “floating charges,” contract, negligence, and unjust enrichment with a focus on Scottish and English jurisprudence in these areas and, in consequence, identifies particular advantages of the “mixed” juridical mindset.

In his discussion, the author lauds both the “systematic exposition” of civil law and the reasoning spirit of the common law: two traditions with combined benefit in the mixed system.

The author concludes by counselling caution in the contemporary movement toward European unity, which, he argues, may result in the extinction of the benefits of mixed systems.

The Value of Mixed Legal Systems ................... Hein Kötz .. 435

In the author's view the experience of the mixed legal systems may make a significant contribution to the great project of developing a European common law, and perhaps even of a European civil code. This experience may show, for example, that the use in a statute of broad statements of principle (such as a good faith clause) does not, as many English lawyers seem to believe, sound the death-knell of established techniques of developing the law by way of an orderly process of reasoning from case to case. This experience may also show that a more rational style of legislative drafting than the one prevailing in England under the influence of the Parliamentary Draftsmen is perfectly compatible with the common law tradition.

The Mixed Legal System of
the Republic of Cyprus .................. Symeon C. Symeonides .. 441

Cyprus—a country with a recorded history that spans eight millennia, the last two of which are marked by long periods of foreign occupation—has a legal system whose diversity reflects that history. Because the United Kingdom was Cyprus 's most recent foreign ruler, Cyprus has received and retained most of the essential elements of the English common law tradition, especially in the areas of procedure and methodology. However, Cyprus has also retained significant elements of Roman-Byzantine law and Ottoman land law, and, since winning its independence in 1960, has borrowed heavily from Greek and French administrative law, and public law in general. With accession to the European Union scheduled for May 2004, Cyprus has also harmonized its public and private law with that of the Union . Thus, in the course of the last four decades, the Cypriot legal system has gradually moved closer to the Continental civil law tradition, although it remains very much a “mixed” system not unlike many of the other systems discussed in this issue of the Review . This Article provides a brief historical background and a basic introduction to this system.

E Pluribus Unum :
The Paradox that Safeguards
Louisiana 's Mixed Legal System ................ Shael Herman .. 457

Since the founding of the Republic, the American polity has been characterized by a refined balance between impulses of uniformity and pluralism, often evoked in the familiar slogan e pluribus unum . A national commitment to pluralism has permitted the individual states of the union to become laboratories of experimentation in formulating their laws, but these state laws, despite important differences, must conform with certain national norms (e.g., due process, equal protection) embodied in the United States Constitution. Louisiana lawmakers seem to have taken the goal of pluralism to an extreme: during nearly two centuries, the state has continuously had a European-style civil code. A blueprint of social and economic relationships among citizens, this code distinguishes Louisiana from her forty-nine counterparts, and puts the state in a third family of legal systems known as mixed jurisdictions. A fascinating interaction between uniformity and pluralism, which also plays itself out in a blend of common law and civil law traditions, may be witnessed in several Louisiana security devices. These devices have been shaped by French law, Spanish law, American commercial law, and the United States Constitution .

Legal Education as Métissage ............... Nicholas Kasirer .. 481

This Article examines whether the mixed legal system presents a model for law teaching. The author observes that in most mixed legal systems, legal education does not focus attention on the encounter between legal traditions that is inherent in the idea of the law's inherent mixedness. He argues that legal education might better be imagined as including a cross-cultural dialogue in law rather than as training for experts in a particular place or set of places. By imagining the mixed legal system more as an experience in encounter than a jurisdiction, legal education might be reoriented around ideals of nomadic and dialogic jurisprudence in place of jurisdictionally based concerns. The author invokes the concept of métissage advanced by scholars in other disciplines as a basis for arguing that legal education should ally itself with the encounter between different legal traditions as an organizing theme in law teaching. Instead of seeking a double or even multiple-tradition expertise, law teachers and their students would aspire to no allegiance at all before law's nomadic identifies and traditions.

The World Society's Web site is http://www.mixedjurisdiction.org.

It must be sadly noted that in 2003 Justice Trías Monge passed away in San Juan . His article Legal Methodology in Some Mixed Jurisdictions may be the final work penned by this remarkable jurist and scholar.