The origin and characteristics of the mixed legal systems of South Africa and Scotland and their importance in globalisation

This paper in honour of my friend and colleague, Andrew Domanski, traces the origin and basic features of the South African and Scottish legal systems, which are perhaps the two most important mixed legal systems in the world. These two systems are identified as truly mixed systems on the basis of criteria developed by Vernon Palmer in his book Mixed Jurisdictions Worldwide in order to distinguish them from other pluralistic or hybrid jurisdictions. The genesis and development of the South African legal system is explored from the time of the Dutch settlement at the Cape in 1652, through British colonial rule from 1806-1900, the subsequent development of South African law after the Anglo-Boer War from 1902 till 1990 and the ushering in of the new constitutional era in South Africa after 1990. An important feature of this development was the gradual adjustment and piecemeal reform of the Cape system of administration of justice. This soon acquired a typically British flavour through, amongst other things, the adoption of the British court system and law of procedure and evidence, the recruitment of legally qualified judges from England and Scotland, the delivery and reporting of well-argued judgments by individual judges and the doctrine of precedent. In addition British rule drew South Africa into a rapidly expanding network of international trade, which significantly boosted commercial and political activity and led to a large-sale importation of English commercial law into the Cape and the eclipse of the unsophisticated Dutch constitutional and administrative law by its English counterpart. At present, the principles enshrined in the post-apartheid South African Constitution are whittling away the superstructure of apartheid laws and are gradually freeing the mixed Roman-Dutch law infrastructure of any form of racial discrimination, leaving a mixed legal system of predominantly English commercial and public law and Roman-Dutch private law, pervaded by the constitutional principles of personal freedom and the rule of law. The genesis of Scottish law and its development into a truly mixed legal system started with the infiltration of Roman law into Scots law through the close connection between Roman law and canon law in the early Scottish ecclesiastical courts, which gradually also influenced the secular Scottish courts; the acceptance of Roman institutions in notarial practice and Scottish legislation, and the emergence of a body of professional lawyers who had studied in Italy, France and - after the reformation - in the Netherlands, rather than at the English universities of Oxford and Cambridge. A wholesale reception of Roman law, especially Roman private law, took place only after the creation in 1532 of a supreme court in Edinburgh, namely the Court of Session; and the creation of a Scottish legal literature by the institutional writers who had studied in Europe and who introduced the ius commune into their native Scots law. However, after Scotland voluntarily joined England through the Treaty of Union in 1707, the influence of civilian law steadily declined and Scots law became increasingly anglicised. Besides the administration of justice system being modelled on the English prototype and the English House of Lords being accepted as the highest court of appeal, the Scottish acknowledgment of the superiority of English commercial law after the unprecedented growth in trade and industry following on the Industrial Revolution of 1850, led to a full-scale adoption of English law into Scots law. Thus Scots law, like South African law, ended up with a strong civilian private law and an English-law based constitutional, procedural and commercial law. In conclusion, the mixed legal systems of South African and Scots law have demonstrated that the two main legal systems of the world, namely common law and civil law, can exist peacefully in one united legal system. Some of the concepts and institutions developed in mixed legal systems, like the South African and Scottish law of trust and the Scottish standard land security replacing the obscure and antiquated English law of mortgage, are of a truly hybrid character. This renders them fit for adoption in harmonisation projects like that of European private law. On a global scale the ease with which English commercial practices have been incorporated into the civilian law of contract of mixed legal systems leaving the civilian principle of consensus virtually intact, can relieve the fears of Continental, Asian and South American civilian lawyers that harmonisation will inundate the law of obligations with unprincipled common-law provisions and institutions. Finally, mixed legal systems, in having adopted the fundamental liberal Anglo-American principles of the rule of law and due process, enshrined in the European Convention on Human Rights and the South African Bill of Rights in Chapter 2 of its Constitution, have ensured that they will be counted amongst the most developed legal systems in the world.