And finally, the Constitutional Court, which is the highest authority on constitutional matters and, since the Sixth Amendment to the Constitution of South Africa, the highest court in the country, both for constitutional matters and for all other matters. This position is legally confirmed and enshrined in the Constitution by section 167 (3) (b) (ii) of the South African Constitution, which provides that the Constitutional Court «may decide any other matter if the Constitutional Court allows the appeal on the ground that the question raises a contentious question of law of general public interest which should be considered by that Court». [8] [9] The Constitutional Court has the final authority to decide whether a question is constitutional or not; s167(3)(c)[8] of the Constitution of South Africa. Legal comparators and economists who defend the theory of legal origins generally divide civil law into four distinct groups: 3 Why mixed legal systems might merge into pure civil or customary law systems [34] The United States is the most striking example of a nation heavily frequented by young lawyers from other jurisdictions. In England, contrary to this general trend, Cambridge Law School has ceased to teach Scottish law, as noted by Tony Weir in his 1998 article «Divergent legal systems in a single member state» in the Zeitschrift für Europäisches Privatrecht at page 572. With regard to the theory of «sources of law» in the Guatemalan legal system, the «Ley del Organismo Judicial» recognizes «law» as the main source of law (within the meaning of legal texts), but also establishes «jurisprudence» as a complementary source. Although case law technically refers to judicial decisions in general, in practice it tends to be confused and identified with the concept of «legal doctrine», which is a qualified set of identical solutions in similar cases handed down by higher courts (the Constitutional Court as the «Tribunal de Amparo» and the Supreme Court as the «Tribunal de Casación»). whose theses become binding on subordinate courts. [30] The classification as «best» rule is, of course, characterized by a high degree of subjectivity and depends on the situation. In retrospect, the choice of a mixed system is not always optimal.
As Du Plessis puts it in his article «Comparative Law and Mixed Legal Systems» for The Oxford Handbook of Comparative Law at page 495: «It will simply be necessary to accept that mixed systems, like other systems, can sometimes do good and sometimes evil.» [18] Reid, Tulane Law Review 2003 7, which also points out that this principle does not apply to Israeli law, which has evolved unlike most other mixed legal systems. The most common is the birth of a mixed legal system as a product of failed colonialism, in which a culture was imposed by a colonialist power but an indigenous culture persisted to some extent.[15] Many African countries are examples of this. In addition to South Africa itself, South African law, particularly its civil and common law elements, forms the basis for the laws of Botswana, Lesotho, Namibia, Eswatini and Zimbabwe, which were introduced during colonization. Basutoland (Lesotho) received the right of the Cape Colony in 1884, Bechuanaland (Botswana) and Southern Rhodesia (Zimbabwe) in 1891. [3] Swaziland (Eswatini) received the right of the Transvaal colony in 1904,[3] and South West Africa (Namibia) received the right of the Cape Province in 1920, after its conquest by South Africa. [4] A third category includes countries that experienced relatively late commercial and industrial development and therefore derived much of their legal input from other systems because they appeared to be more sophisticated.[20] Greece, Japan and Turkey are representatives of this category. [29] The view expressed in this article is that of Alan Watson, who views legal borrowing and transplantation not only as a phenomenon that is occurring, but as the main source of change in the Western legal tradition. Pierre Legrand disagrees when he refutes the idea of legal transplants. According to him, they do not exist because each legal norm needs its specific historical-cultural context to live, and without it, it is meaningless and therefore useless for a comparative jurist to examine them. But this opinion draws too harsh a consequence, which is not followed, because it does not clarify why certain minor changes of meaning by transplantation into a new legal environment must necessarily have the radical consequence that only a «network of words» remains.
In addition, the legislation has also created a number of specialized courts to deal with specialized areas of law of importance to the public and to avoid a delay in the main infrastructure of law administration. These courts exist alongside the judicial hierarchy; Their decisions are therefore subject to the same appeal and review procedure by the ordinary courts, from a certain level, depending on the specialised court concerned. Within these specialized courts, there are, to name but a few, the Court of Appeal for Competition, the Electoral Tribunal, the Land Claims Tribunal and the Labour and Labour Court of Appeal. [10] Religious law refers to the notion of a religious system or document used as a source of law, although the methodology used varies. For example, the use of Judaism and halacha for public law has a static and immutable quality that excludes amendment by legislative acts of government or development by judicial precedent; Christian canon law is closer to civil law in its use of codes; And Islamic Sharia (and fiqh jurisprudence) is based on precedent and reasoning by analogy (qiyas) and is therefore considered similar to common law. [21] Halakha was followed by Orthodox and conservative Jews in ecclesiastical and civil relations. No country is entirely governed by halacha, but two Jewish people, based on their personal beliefs, can decide to have a dispute heard by a Jewish court and be bound by its decisions. 4 Why mixed legal systems can remain mixed and not merge into pure common law (or civil law) systems The main types of religious law are Sharia law in Islam, halacha in Judaism, and canon law in some Christian groups. In some cases, it is purely individual moral leadership, while in other cases it is intended and can serve as a basis for a country`s legal system; The latter was particularly common in the Middle Ages. The following is an exhaustive list of countries that base their legal systems on codified civil law: This article aims to explain why, in my view, mixed legal systems are unlikely to be in transition, whether civil or customary, and will not end up as one of the two «classic» legal paths. Rather, they will expand their borrowing and transplantation efforts and strive to achieve the «perfect rule» among the available rules of existing civil law, just as all common law systems do when they fail to find a flashy and creative new solution in a particular area.
This gives them great potential as models when legal harmonisation and unification are on the agenda or when the two classic Eurocentric legal families stagnate and need inspiration.