Not all countries have a dominant legal tradition. Some countries because of their historical circumstances, have both a Roman law root and an English common law root. In this lecture, we'll talk about the major hybrids. Many countries are mixtures between common law and civil law. For instance, Louisiana and Quebec still have a French law root to them. At law school in Louisiana and Quebec, you still need to get a Bachelor of Civil Law to practice law rather than a Juris Doctor. Puerto Rico even has a Napoleonic Code that provides the framework of its law. But when we're talking about hybrids, we're talking about countries that have no dominant legal tradition because Roman law and common law are equally mixed. We're going to distinguish between the ancient hybrids and the modern hybrids. The ancient hybrids, like Scotland and South Africa are countries that grew up as mixed systems. By contrast, when we talk about Japan and Israel, these are countries whose legal systems in the 20th century were reconstructed because of World War II and its aftermath. Israel and Japan were constructed to be hybrids. In Scotland and South Africa, what legal scholars sometimes called the Northern Cross and the Southern Cross, uncodified Roman law still exists. It predominates, especially in private law as modified by English procedure and a court system that applies judicial precedent. English common law tended to penetrate more in public law and especially in criminal law, because the British colonizers tended to draft new penal codes for their colonies. Criminal law tends to be quite common law oriented. I will note that there are some other legal systems on earth that also fit this model. We'll see Roman-Dutch common law exists not only in South Africa, but also in Sri Lanka and in Guyana, which were also Dutch colonies that were later colonized by the British and in those countries that border south Africa, as we'll see, because their legal systems are modeled on South Africa's. In addition to judges applying binding precedence in these countries, we also see elements of the Roman-Germanic legal family. In particular, we'll see in these legal systems, the writings of the early legal scholars are authoritative statements of law. Scots law is the first hybrid system we'll look at. In Scotland, there's a large residue of Roman law. The Scottish legal system was systematized and written down and studied beginning in the late 1600's, that's before the act of union with England in 1707, which created a period of convergence with English law and the infiltration of English precedent, especially after 1800. A reception of Roman law was really gradual. There was not a single point in time at which scholars had want Justinian's Code to be a framework law. Scottish lawyers went to France and Holland to study Justinian's Code. Areas of law that formed earlier, like land law and inheritance tend to be more influenced by Roman law. The rules in Scottish law are still different than in England. For instance, Scotland still has three jury verdicts, guilty, not guilty, and not proven. If a preceder gets a not proven verdict, he can bring the case again. In addition, other Roman-Germanic legal systems, the writings of the scholars are very important to Scottish law, especially the writings of the Viscount Stair, James Dalrymple. The Viscount Stair was the head of Scotland's High Court of the Justiciary. He wrote the first treatise of Scots law in the late 1600s. Other important legal scholars are Professor John Erskine and Baron David Hume, especially in the Roman of criminal law. They also wrote important Scots law treatises. If you want to cite what the Scots law rule was before the reception of English law and the infiltration of English precedent in Scotland's court system, you would cite the treatises, especially the treatise by the Viscount Stair. The Scotland Act of 1998 devolved power to the Scottish Parliament, which is now self-governing in almost all areas except for a few retained by the UK Parliament like defense and foreign affairs. Over time, we'll see Scottish law diverges again from English law because of the Scotland Act. The legal system of Scotland is going to sound quite arcane. Criminal cases will begin in a district court or a sheriff court, depending on the severity of the crime and appeal to the High Court of the Justiciary, which will hear cases in different sized panels, and they can reverse one another. Civil cases will begin in a sheriff court and appeal to the Court of Session, first to the Outer House at the Court of Session, and then to the Inner House of the Court of Session. It is possible to get from these courts to the UK Supreme Court and previously to the Law Lords in the House of Lords with permission of those tribunals. That's quite rare though. The judges of the High Court of the Justiciary are called the Lord Commissioners. The judges in the Court of Session are called the Lords of Session. Both of them serve in the College of Justice and they're Senators of the College of Justice along with the precedent of the Scottish Land Court. It's more common to refer to these judges as Senators of the College of Justice. In Scotland, the legal profession is bifurcated. That means that there's a distinction between solicitors who represent clients and advocates, what England calls barristers, which argue in court. There is a small role for solicitor-advocates after 1993, but barristers are quite protective of their privileges, so the solicitor-advocate role is still quite small. If you want to become a solicitor, you've got to an apprenticeship. That's called a traineeship in Scotland, and you've got to become a trainee solicitor. If you want to become an advocate in Scotland, you've got a devil under a devilmaster. The advocate apprenticeship is called devilling. The next hybrid example we'll look at is Roman-Dutch common law. Roman-Dutch common law prevails in countries that were colonized by both the Netherlands and by Britain. These tend to be countries like Guyana, Sri Lanka, and elsewhere. These are countries that never received a civil code from the Netherlands because they were acquired by Britain before that. But it's in South Africa where this law is strongest as we'll see. The Dutch heritage in South Africa began with the Dutch East India Company, which settle the Cape of Good Hope in 1652. From that point until the British acquired South Africa in 1814, South Africa operated in a Roman-Dutch law. It continued to, for the Boer republics, Transvaal and the Orange Free State, which were not conquered by the British until the early 20th century in the Boer Wars. The Union of South Africa was not formed until 1910. That's pretty late. That means that Roman-Dutch law really persisted for a long time. Today, South Africa adopts legal precedents from the English common law, but the writings of the medieval Dutch law scholars are still authoritative. You can go to court and cite, for instance, Hugo Grotius, Johannes Voet, or Cornelius van Bijnkershoek. There's about a dozen other medieval Dutch scholars who are still authoritative as to what South African law actually is. During apartheid in South Africa, when the Afrikaners dominated the political system and Afrikaans was the predominant language used in court, Roman-Dutch law aspects were emphasized and English common law aspects were purged from the system. Roman-Dutch common law went through a purification process as part of the ethno-nationalist projects of the Afrikaners and the Nationalist Party that was in power. The reverse post-apartheid is now true. Roman-Dutch law elements are being minimized in South African law and English common law elements are being emphasized. There's also a change for the role of African customary law. Traditionally, in the colonial period, African customary law was not recognized as law. During apartheid, African customary law was used as subordinate law. It could not apply to whites, it only applied to different ethnic groups in South Africa. The apartheid establishment tried to divide everyone up into different ethnic groups so that they could divide and conquer basically. African customary law had a formal role to play among each of South Africa's ethnic groups. But the 1995 post-apartheid constitution now considers African custom as a general source of law, generally applicable across a legal system. You may find more African customary concepts enter the body of South African law. For instance, the concept of Ubuntu, the Southern African concept of relational human dignity that's finding a role in South African constitutional Law. It's in the preamble of the South African Constitution. It's been cited by the constitutional court in a number of cases. You may see other African law concepts come into the South African legal system like that. In addition, South African law was replicated in the countries of Botswana, Zimbabwe, Lesotho, Eswatini, and Namibia. Those countries still have a Roman-Dutch common law root to them because the British just extended the law of the Cape of Good Hope to those jurisdictions. I will say that during the period of apartheid, Roman-Dutch common law was de-emphasized because those countries opposed apartheid. But South African law is still highly persuasive in those courts. In South Africa minor cases begin in the magistrates court. They appeal to the High Court. More serious cases, especially criminal cases we'll begin in the High Court. Those will appeal to the Supreme Court of Appeal. There's 23 judges on the Supreme Court of Appeal. They hear cases in panels. They sit in Bloemfontein which is the judicial capital of South Africa. The Supreme Court of Appeal during the apartheid period was called the Appellate Division. Supreme Court of Appeal was created by South Africa's new constitution in 1995. African customary disputes like those involving inheritance, or communal land law, or family law, will begin at chief or headman's court and then appeal to the magistrate court and then appeal to the High Court. There's also a very prestigious constitutional court of 11 judges in South Africa. This was also created by the 1995 constitution. It's heard some very famous case involving the death penalty, LGBT rights, and others. It sits in Johannesburg. The legal profession in South Africa is bifurcated. Only attorneys can represent clients, only advocates can argue in courts. There's no overlap between an attorney and an advocate. They are two separate professions. To become an attorney you have to  an articles of clerkship. You have to become an article in clerk, as it's sometimes called. To become an advocate, you have to  a pupilage. That's what that apprenticeship is called. Notably in Lesotho the legal profession is also bifurcated along South African lines. But in Namibia and Botswana and Zimbabwe and Eswatini, the legal profession is fused. There's no distinction between attorneys and advocates. That's partly because the legal profession is much smaller and the cost of legal services is higher, fusing the legal profession lowers the cost of legal services. In this section, we will talk about the modern hybrids, Japan and Israel. These countries had their legal systems reconstructed in the middle of the 20th century and because of their geopolitical and historical circumstances, a lot of different influences came to bear on their legal systems. Prior to the beginning of the Meiji era in 1868, Japanese law was primarily feudal in nature. It was written but there was no universal law that applied to everyone. Japan was divided up into a number of fiefdoms, each with their own laws and it had a strict social hierarchy so the different laws would apply to different people on that higher hierarchy. The study of law was primarily monastic or private apprentice ships because law at the time was not fully separated from religion or for morality, but you would study the social codes. With the Meiji era, the westernization of Japanese law began. The legal profession and education were organized and professionalized. In 1882 Japan adopted a French style penal code and a French style inquisitorial mode of criminal procedure. In 1898 Japan adopted a German style civil code and Germanic law tends to be the root law of the Japanese legal system today as we know it. After 1945, however, with the American occupation and the drafting of a new constitution by the American occupiers the Anglo-American influence became much more prominent, judicial precedent became important for instance. The American influence was greatest in the realm of public law naturally especially in constitutional law, labor law, business law, but also in criminal procedure so Japan today has a mixture between an adversarial and inquisitorial system. However, notably, the legal profession in Japan is still quite small. Going to court is unusual, it's still seen as the last resort. Conciliation, mediation and other forms of alternative dispute resolution are still much more important in Japan than they are elsewhere in the Western world. In addition, the legal profession is tightly controlled. It's guarded by rigorous examinations. Maybe 20 percent of law students pass those examinations each year. Reform of the Japanese legal system after the American occupation took several decades. That was partly because of disagreements among judges, prosecutors and lawyers especially tension between the court system and the Ministry of Justice. In the 1960s and '70s the Supreme Court gradually became more assertive, it began to strike down laws. Still though compared to other western Supreme Court's its pretty deferential, it doesn't strike down laws all that often. Another big reform in Japanese law is the introduction of a mixed jury system, the saiban-in, in 2004. Japan now has a system in which six citizens serve as lay judges alongside three professional judges. They deliberate as a team in criminal cases especially in prosecutions of serious crimes that could result in life imprisonment or the death penalty. This mixed jury system serves as civic education function that introduces ordinary citizens to the workings of the court. However, surveys show that Japanese citizens have mixed feelings about this, jury service. About 37,000 citizens have served on these saiban-in in the first five years after their introduction. Israel does not have a written constitution. In that sense, it's in the same category as Britain, New Zealand, and Saudi Arabia. It does have some basic laws that are extraordinary legislation. They're more important than ordinary legislation. These require a super majority of the Knesset to change. The Knesset is the unicameral legislature. The basic laws lay out the structure of the Israeli government and citizens rights. The Israeli legal system is English common law based because of the British mandate over Palestine with some civil law elements, especially because of migration to Israel from Europe and Russia. The Ottomans civil code provisions still predominate in land law, that's also true of Palestinian land law. There has been efforts to codify Israeli private law but these have been incomplete so far. There's never been a single civil code published in Israel. Controversially, Israel extends its legal system to the enclaves. These are Jewish settlements in the West Bank in Palestine. However, generally speaking, Palestine has its own court system, and its own structure of courts including the application of Sharia in some private law matters. This includes a new constitutional court for Palestine, which was created in 2016 with EU support. In Israel, the court system begins at the magistrate courts and those appeal to the district courts and those appeal to the Israeli Supreme Court. The Israeli Supreme Court is very active, the opposite of Japan. It frequently finds government actions unconstitutional. It frequently creates new doctrines and legal innovations. This is deeply problematic because Israel doesn't have a written constitution, so essentially, we have judges on the Supreme Court who have the ability to make law without a lot of accountability. Another aspect of the Israeli legal system that's a bit unusual for outsiders is the role of religious courts. Personal status law must be governed by religious courts. That typically includes marriage and divorce law, as well as inheritance and succession especially in property matters, but it can include other things depending on the court and the law. In Israel, there's separate courts for Jews, for Muslims, for Druze's, and for the 10 recognized Christian nominations, not Protestantism, but Roman Catholics, Armenians, Ethiopian Orthodox, Greek Orthodox, Maronites, etc. In the Christian nominations, the courts appoint their own judges. But for the Jewish, Islamic and Druze courts judges are appointed by the president of Israel. I'll talk about the Rabbinical courts the most because they comprise about 80 percent of those religious court cases. Rabbinical courts must apply codified Halakhah law. That's traditional, classical Jewish law. Jewish religious norms must apply to all Jewish marriages and divorces. Even if you marry a non-citizen of Israel who's Jewish and even if you're not religious or you don't want the laws to apply to you, if you don't want a religious marriage. The Supreme Courts ruled that religious courts must presumptively treat women equally, even if the religious law disadvantages women, as some religious laws do in the event of divorce or death, especially with distribution of property women are sometimes disadvantaged with the Supreme Court's rule that unless the parties agree to the religious rule women must be treated equally in religious courts. The Jewish law that is used in Rabbinical courts is codified from the classical Halakhah. The basic sources of Halakhah are the written Torah, which are the first five books of the Hebrew Bible and the Talmud, the oral Torah, which is composed primarily of the Mishnah, the medieval compilation of the sacred tradition that grew up around the Torah and the Gemara, which is the juristic commentary on the oral Torah. Those are the classical sources but because it's been codified it's removed a lot of the flexibility and diversity of thought that traditionally characterize Jewish law, same in Islamic law where you have a series of very specific rules and then, some unwritten extrapolations from those rules that have become authoritative over time because of the juristic writings and the scholars.

1. Why did the role of English common law wax and wane in South Africa over the 20th century? What is the current status of English common law in South Africa?

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i The role of English common law in South Africa experienced fluctuations over the 20th century due ... View the full answer