PUBLIC LAW IN MIXED LEGAL SYSTEMS AND PUBLIC LAW AS A ‘MIXED SYSTEM’ Esin ?rücü, 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 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. 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. 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’. 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’. 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. 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. 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. 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 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. 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 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. 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. 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. 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. 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. 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. 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. 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. 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. 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’. 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.’ 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’. 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.’ 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, 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. 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. 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. 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 Europe are growing closer together.’ 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.