Comparative Law and Hybrid Legal Traditions An Introduction -

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1 INTRODUCTION Seán Patrick Donlan * Comparative Law and Hybrid Legal Traditions An Introduction - Legal Families, Systems, and Traditions Much of the scholarship of comparative law over the last century has centred on taxonomy. But debates on the classification of the world s jurisdictions, and the shifting terminology used in these debates, have often generated more heat than light. Best known may be René David s use of the concept of a legal family. His scheme was largely didactic, created for pedagogical and conversational purposes. 1 He argued that establishing a limited number of types, simplifies the presentation and facilitates an understanding of the world s contemporary laws. 2 Neither David s nomenclature nor its criteria were very precise. Indeed, as in the title of his most famous work, he often employed system as a synonym for family. Confusingly, system was also used more in relation to the specific legal orders of the major Western jurisdictions, especially England, France, Germany, and the United States. With few exceptions, most modern comparative scholarship has pursued a parallel approach. 3 In their Introduction to Comparative Law, Konrad Zweigert and Heinrich Kötz adopted much the same method. In trying, like David, to move beyond a narrow focus on legal rules, they employed the term legal style, explaining that The following factors seem to be those which are crucial for the style of a legal system or legal family: (1) its historical background and development, (2) its predominant and characteristic mode of thought in legal matters, (3) especially distinctive institutions, (4) the kind of legal sources it acknowledges and the way it handles them, and (5) its ideology. 4 * Lecturer in Law, BA (Houston), JD (Louisiana), PhD (TCD) Limerick University, Ireland. S.P. Donlan wishes to thank Ignazio Castellucci for his comments on this introduction. 1 R. DAVID & J.E.C. BRIERLEY, Major Legal Systems in the World, 3 rd ed., London: Stevens & Sons 1985, Ibid.., J. HUSA, Legal Families, in J.M. SMITS (ed.), Elgar Encyclopaedia of Comparative Law, Cheltenham: Edward Elgar Publishing See also P. DE CRUZ, Comparative Law in a Changing World, 3 rd ed., Abingdon: Routledge-Cavendish K. ZWEIGERT & H. KÖTZ, An Introduction to Comparative Law, 3 rd ed., Oxford: Oxford University Press 1998, Electronic copy available at:

2 SEÁN PATRICK DONLAN But the promise, both in David and in Zweigert and Kötz, of either classificatory clarity or a deep contextualisation of laws in the histories and cultures that produced them has remained largely unfulfilled. 5 John Henry Merryman s use of legal system and tradition is somewhat clearer. A legal system, he writes, is an operating set of legal institutions, procedures, and rules. 6 On the other hand, a legal tradition is a set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in the society and the polity, about the proper organization and operation of a legal system, and about the way law is or should be made, applied, studied, perfected, and taught. The legal tradition relates the legal system to the culture of which it is a partial expression. It puts the legal system in cultural perspective. 7 A tradition is thus a richer, more culturally sensitive, concept than a system. The latter is drawn up in a narrow manner, more or less along the lines of positivist thought. For Merryman and many others, individual legal systems, the ensemble of ideas and institutions that form a jurisdiction, instantiate pan-national legal traditions to different degrees. Acknowledging that there is no such thing as the civil law system or the common law system, this approach nevertheless remains a very blunt tool of classification. 8 And, if it seeks to find what the American legal realists labelled the law in context, it arguably fails to appreciate what Eugen Ehrlich called the living law, the official or unofficial normative orders that are meaningful in practice. 9 Indeed, the efforts of comparative lawyers are often largely one-dimensional, highlighting perceived present differences of the pan-national Anglo-American ( common law ) and continental ( civil law or Romano-Germanic ) legal traditions. The temporal and social dimensions, each intimately related to the other, are neglected. 10 The primary divisions of comparative law arise from internal 5 Cf. Jaakko Husa s claim that the idea of legal family automatically contains an idea of historical relationship between different systems of law. J. HUSA, Legal Families and Research in Comparative Law 2001 (1:3) Global Jurist 13 at ( ). 6 J.H. MERRYMAN & R. PÉREZ-PERDOMO, The Civil Law Tradition: an Introduction to the Legal Systems of Europe and Latin America, 3 rd ed., Stanford: Stanford University Press 2007, 1. 7 Ibid., 2 (italics added). 8 Ibid. 9 On the distinction, see D. NELKEN, Law in Action or Living Law?: Back to the Beginning in Sociology of Law 1984 (4) Legal Studies 157, especially 169 et seq. See also M. HERTOGH, A European Conception of a Legal Consciousness: Rediscovering Eugen Ehrlich, 2004 (31) Journal of Law and Society There are some exceptions: W. MENSKI, Comparative Law in a Global Context: the Legal Systems of Asia and Africa, 2 nd ed., Cambridge: Cambridge University Press 2006; E. ÖRÜCÜ, Critical Comparative Law, Devanter: Kluwer Publishers 1999, also available in 2000 (4) European Journal of Comparative Law at ( ); E. ÖRÜCÜ & D. NELKEN (eds.), Comparative Law: a Handbook, Oxford: Hart Publishing 2007; R.B. 10 Electronic copy available at:

3 INTRODUCTION Western attempts to differentiate its national, common legal orders in the aftermath of the revolutionary changes and colonial adventures of the seventeenth to nineteenth centuries. By emphasising differences between its major traditions, comparative law ignores similarities between them as well as differences internal to the respective traditions. Perhaps more importantly, it remains deeply Eurocentric. It fails to acknowledge the more explicit, but hazy, boundaries between law and other norms in jurisdictions around the world. Even today, comparative scholarship often suggests the existence of discreet, reified, or pure legal systems with clear standards that act as a metric against which other legal orders may be judged. Whatever its pedagogical or conversational utility, such intellectual pigeon-holing distorts the lived complexity and dynamic diversity of legal ideas and institutions. If the taxonomic urge is understandable, legal/normative hybridity is the norm for both the Western past and the global present. 11 If that fact makes the work of comparison more difficult, it cannot be avoided. Over the past decade, Patrick Glenn has emphasised a more complex and inclusive understanding of legal tradition. 12 Underscoring the link to the past present in all legal orders, he identifies such a tradition with the content and flow of large bodies of normative information over time and over space. 13 Indeed, viewed in this way, historical and comparative research is very inclusive and expansive, enveloping both state law and other non-state norms. 14 He admits that this greatly complicates the taxonomic project and the popular conception of legal families: SCHLESINGER et al. (eds.), Schlesinger s Comparative Law, 7 th ed., New York: Foundation Press If, as Peter Burke writes, hybridity is a slippery, ambiguous term, at once literal and metaphorical, descriptive and explanatory, it arguably remains the best of bad options.: P. BURKE, Cultural Hybridity, Cambridge: Polity Press 2009, 54. For other attempts at classification, see U. MATTEI, Three Patterns of Law: Taxonomy and Change in the World s Legal Systems, 1997 (45) American Journal of Comparative Law 5 and M. VAN HOECKE & M. WAR- RINGTON, Legal Cultures, Legal Paradigms and Legal Doctrine: Towards a New Model for Comparative Law, 1998 (47) International and Comparative Law Quarterly See especially Legal Traditions of the World, 4 th ed., Oxford: Oxford University Press Cf. M.A. GLENDON et al. (eds.), Comparative Legal Traditions: Text, Materials and Cases on Western Law, 3 rd ed., St. Paul: West Publishing 2006, For Glenn s preference for tradition rather than culture, see P. GLENN, Legal Cultures and Legal Traditions, in M. VAN HOECKE (ed.), Epistemology and Methodology of Comparative Law, Oxford: Hart Publishing P. GLENN, A Concept of Legal Tradition, 2008 (34) Queen s Law Journal 427, 431. This is part of a wider normative legal history. See P. GLENN, On Common Laws, Oxford: Oxford University Press, 2005, viii. 14 This idea thus allows comparative appreciation of laws in the world which are nonsystematic in character. P. GLENN, Legal Families and Traditions, in M. REIMANN & R. ZIM- MERMANN (eds.), The Oxford Handbook of Comparative Law, Oxford: Oxford University Press 2006, 425. See P. GLENN, A Concept of Legal Tradition, supra n. 13,

4 SEÁN PATRICK DONLAN Taxonomy and legal families have the task or objective of separation and distinguishing, whereas legal traditions have the task only of supporting their own forms of normativity. This usually involves more art than science, more attempting to do justice than attempting to build and classify systems. 15 Understood in this way, legal traditions may be local, regional, national, or pannational, or international; they may even extend beyond legal hybridity to normative pluralism more generally. 16 This approach to legal tradition also has a normative purpose: Traditions have fuzzy edges; they can only be identified in relation to other traditions; they contain within themselves elements of opposition; they are linked to one another by lateral or cross traditions which are defined otherwise than by the criteria of definition of a main or principal tradition. To speak of a tradition of le droit civil or a tradition of the common law, or a tradition of Islamic law is not to construct a precise, autonomous and internally consistent object. The concept of tradition would therefore be an epistemological concept which is rooted in what can be called an epistemology of conciliation, as opposed to an epistemology of conflict. 17 Indeed, the specifically mixed legal systems illustrate how this conciliation takes place quite explicitly. 18 Mixed Jurisdictions, Mixed Legal Systems, and Hybrid Legal Traditions Like debates on legal families and traditions, discussion of mixed jurisdictions or mixed legal systems is, as Esin Örücü has recently written, a perilous and delicate task. 19 With comparative study more generally, these discussions are focused almost exclusively on the laws of the State. As with Glenn s use of tradition, much may be gained by including the study of non-legal norms. As with legal families, 15 P. GLENN, Legal Families and Traditions, supra n. 14, Indeed, it may well be impossible to categorize national legal systems according to legal traditions (...) The concept of legal tradition thus suggests that one look for degrees to which different traditions have been influential in the make-up of different national laws, and would be antithetical to exclusivist categorizations according to a limited range of criteria. Legal traditions would thus underlie and infiltrate national legal systems, which could no longer be taken as simple objects of classification and taxonomy. P. GLENN, Legal Families and Traditions, supra n. 14, 425. See also W. TWINING, Normative and Legal Pluralism: a Global Perspective, 2010 Duke Journal of Comparative & International Law P. GLENN, Legal Cultures and Legal Traditions, supra n. 12, P. GLENN, Mixing It Up 2003 (78) Tulane Law Review 79. Indeed, Glenn has criticised the canard of legal incommensurability, arguing that the dialogue of mixed jurisdictions is proof to the contrary. Ibid., 81. See also P. GLENN, Are Legal Traditions Incommensurable?, 2001 (49) American Journal of Comparative Law 133. See also D. VISSER, Cultural Forces in the Making of Mixed Legal Systems, 2003 (78) Tulane Law Review E. ÖRÜCÜ, What is a Mixed Legal System: Exclusion or Expansion?, in E. ÖRÜCÜ, Mixed Legal Systems at New Frontiers, London: Wildy, Simmonds & Hill Publishing 2010, 1. 12

5 INTRODUCTION there are existing problems with both terminology and taxonomy. In current research, mixed jurisdictions and mixed legal systems may be treated either as (i) synonyms or as (ii) distinct, the former a narrower subset of the latter. 20 In practice, the focus is largely on combinations of Western laws, especially the Anglo-American and continental, evident in relatively discrete sections. Indeed, traditionally the term mixed is only used to describe a relatively small group of legal systems or jurisdictions which have been shaped so significantly by both the civil law and common law traditions that they cannot be brought home comfortably under either. 21 Such inelegant terms as mixed jurisdictions and mixed legal systems are basically an accident of history. 22 Both are reserved for those jurisdictions that contain significant and explicitly segregated elements of different pan-national legal traditions deriving from the specific political-legal systems that formed them. The crude classifications of much past and present comparative study positivist, centralist, monist results in pushing such jurisdictions into a marginal and uncertain position. 23 In fact, both mixed jurisdictions and mixed legal systems may refer to mixes of: (i) Anglo-American and continental law generally, (ii) continental laws overlaid with Anglo-American law later in time, or (iii) continental private law joined to Anglo-American public and criminal law. This confusion significantly complicates both classification and communication. 24 The latter two definitions are also often referred to as classical mixed jurisdictions though, like the other terms used, it is barely a century old See K.G.C. REID, The Idea of Mixed Legal Systems, 2003 (78) Tulane Law Review J. DU PLESSIS, Comparative Law and the Study of Mixed Legal Systems, in M. REIMANN & R. ZIMMERMANN, The Oxford Handbook of Comparative Law, supra n. 14, V. PALMER, Mixed Jurisdictions, in J. SMITS, Elgar Encyclopaedia of Comparative Law, supra n. 3, 467 (referring to mixed jurisdictions ). Legal cartographers during the height of the British Empire were unable to fit these entities into the civil law or common law mould which dominated their thinking, and hence they simply called them mixed or hybrid to indicate their otherness. Ibid. 23 L. MOCCIA, Historical Overview on the Origins and Attitudes of Comparative Law, in B. DE WITTE & C. FORDER (eds.), The Common Law of Europe and the Future of Legal Education, Devanter: Kluwer 1992, 619, n. 14. See L. MOCCIA, Review of G. GORLA, Il Diritto Comparato in Italia e nel Mondo Occidentale e una Introduzione al Dialogo Civil Law-Common Law 1985 (33) American Journal of Comparative Law 533, Malta, for example, fits (i) and (ii), but arguably not (iii). J.M. GANADO, Malta: Microcosm of International Influences, in E. ÖRÜCÜ et al., Studies in Legal Systems: Mixed and Mixing, The Hague: Kluwer International In Israel, Anglo-American law was overlaid with continental law, rather than as in (ii) the other way around. See S. GOLDSTEIN, Israel, in V. PALMER (ed.), Mixed Jurisdictions Worldwide: the Third Legal Family, Cambridge: Cambridge University Press Note too, the importance of religious law. 25 In two articles, Palmer has traced the genealogy of this terminology. See V. PALMER, Two Rival Theories of Mixed Legal Systems, in E. ÖRÜCÜ (ed.), Mixed Legal Systems at New Frontiers, supra n. 19, 19-52; also available at, 2008 (12) Electronic Journal of Comparative 13

6 SEÁN PATRICK DONLAN A decade ago, Vernon Palmer added yet another term with the publication of Mixed Jurisdictions Worldwide: the Third Legal Family (2001). 26 A native Louisianian, he emphasised the degree to which the specific systems discussed Israel, Louisiana, Quebec, the Philippines, Puerto Rico, Scotland, and South Africa shared profound generalizable resemblances. 27 Each combined continental private law with Anglo-American legal public and criminal law. Palmer suggested that they may be treated collectively as a distinctive third legal family (between the well-known Anglo-American and continental families ) and their experiences generalised. His extended family has fifteen members, including, in addition to those jurisdictions already mentioned, Botswana, Lesotho, Mauritius, Saint Lucia, the Seychelles, Sri Lanka, Swaziland, and Zimbabwe. 28 Palmer was also the driving force in the establishment of the World Society of Mixed Jurisdiction Jurists in Through his scholarship and that generated by the Society s events and publiccations, he s responsible for the generation of significant study of, and dialogue on the subject of both the third legal family and legal hybridity more generally. 29 Indeed, the subject has generated significant attention in the last decade among comparatists. 30 The jurisdictions are, or so it has been argued, models for the century to come. 31 As noted, it is also common for writers to use mixed legal system more broadly to cover any legal system with explicit and discreet elements of other traditions. 32 For Law at ( ) and V. PALMER, Quebec and Her Sisters in the Third Legal Family, 2009 (54) McGill Law Journal Palmer edited the work on the basis of national reports prepared by him and completed by jurists in the respective jurisdictions. See also V. PALMER, Mixed Jurisdictions, supra n Mixed jurisdictions worldwide, supra n. 24, 4. Palmer argue[s] strongly for the proposition that legal history can be highly autonomous and path dependent. Ibid. But Palmer s classification can, however, sometimes marginalise elements unique to a tradition that might otherwise exclude it from third family gatherings: e.g., the customary laws of South Africa, the Islamic law of the Philippines, and, as noted, the Talmudic law of Israel. 28 Ibid The First World Congress (2003) of the Society generated, among other things, the 2003 (78) Tulane Law Review, a special issue on the subject. The Second (2007) generated several volumes. Most of the papers presented are available online in (2008) Electronic Journal of Comparative Law ( articles based on these papers are also available in special volumes of the 2008 (3) Journal of Comparative Law, 2008 (19) Stellenbosch Law Review, and 2009 (25) Tulane European and Civil Law Forum. 30 Jan Smits has suggested, for example, that continuing mixity is the product of rational choice. See J. SMITS, The Making of European Private Law: Towards a Ius Commune Europaeum as a Mixed Legal System, Antwerp: Intersentia 2002 and J. SMITS, Introduction: Mixed Legal Systems and European Private Law, in J. SMITS, The Contribution of Mixed Legal Systems to European Private Law, Antwerp: Intersentia See also H. KÖTZ, The Value of Mixed Legal Systems, 2003 (78) Tulane Law Review E.g., J.-L. BAUDOUIN, Mixed Jurisdictions: a Model for the XXI st century, 2003 (63) Louisiana Law Review Cf. De Cruz s use of hybrid legal systems in Comparative Law in a Changing World, supra n. 3,

7 INTRODUCTION example, a list prepared and posted online by the University of Ottawa, uses the term to cover various collections of civil law, common law, customary law, Muslim law, and Jewish law. 33 If this lacks the precision, such as it is, of narrower definitions, it has the virtue of including non-european elements. Explicitly complex jurisdictions are not themselves pushed into a marginal and uncertain position. Even these are included, however, only insofar as they resemble Western state-centred legal models. In such mixes, local laws may persist, but the Western traditions are still dominant, at least in theory, in a weak or state legal pluralism where these other legal orders persist by recognition by the state. 34 Outside the West, neither European mixes nor the various, nominally distinct, Western legal traditions, including the Anglo-American, continental, and Nordic traditions, would appear very different from one another. Esin Örücü, a Turkish jurist teaching in Scotland, has long sought to expand research beyond European mixes to more exotic hybrids. 35 A noted comparatist, she is also especially critical of the legal families approach to comparative law. 36 Whether one adopts a narrow or wide definition of a mixed system, it may remain difficult to determine with any precision how mixed a system must be to qualify. As Ignazio Castellucci notes, [s]ome balance is needed, for classifications to be useful. A classification which is too fine is not so useful A classification which is too coarse and general is not so either, as its categories will be broader than appropriate to convey the desirable amount of information. 37 Inevitably, a subjective decision determines classification. 38 William Tetley has even written that [f]acetiously, one might define a mixed jurisdiction as a 33 ( ). See generally Classification of Legal Systems and Corresponding Political Entities at ( ). The list is also in PALMER, Two Rival Theories of Mixed Legal Systems, supra n. 25, The plurality of laws is usually referred to as legal pluralism by comparatists and legal historians, but legal pluralism is also used by legal anthropologists and sociologists to include both state ( official ) law and other meaningful non-state norms ( unofficial laws ). Cf. J.G. HOLBROOK, Legal Hybridity in the Philippines: Lessons in Legal Pluralism from Mindanao and the Sulu Archipelago, 2010 (18) Tulane Journal of International & Comparative Law See especially What is a mixed legal system: exclusion or expansion? 36 See, e.g., E. ÖRÜCÜ, A General View of Legal Families and of Mixing Systems, in ÖRÜCÜ & D. NELKEN, Comparative Law, How Mixed must a Mixed System be? 2008 (12) Electronic Journal of Comparative Law, available at ( )), See V. PALMER, Mixed Jurisdictions Worldwide, supra, n. 24, 17. Cf. V. PALMER, Mixed Jurisdictions, supra, n. 22, 468. [C]omparative law classifications are not based strictly upon factual data. If they were, all the world would be recognised as a series of mixed systems and faith-based traditions would have to be questioned. Quebec and her Sisters in the Third Legal Family, supra, n. 25, 341. Prevailing states of mind, then, play a substantial role. Ibid.,

8 SEÁN PATRICK DONLAN place where debate over the subject takes place. 39 But even if we remain at the level of legal rather than normative hybridity, mixity or complexity is the rule both historically and in the contemporary period. Those modern systems designated as mixed are simply the most explicit, obvious hybrids. [A]ll the world s legal systems are in some manner mixed. An appreciation of this fact allows us to see the law and its development as it really is. 40 Ironically, mixed jurists, those working within or on mixed systems, may be most aware of this fact and its implications. 41 Consistent with this understanding, Örücü has proposed a family trees model that regards all legal systems as mixed and overlapping, overtly or covertly, and groups them according to the proportionate mixture of the ingredients. 42 Palmer argues, too, that Recognizing that hybridity is a universal fact will no doubt require us to revise some of the received attitudes and prejudices about mixed systems, particularly attitudes about classical mixed jurisdictions. [M]ixed systems have been too much at the center of legal evolution to be regarded as something unusual or strange. They cannot be both paradigms and pariahs at the same time. A useful classification scheme ought to begin with their centrality as a point of departure. 43 The work of mixed jurists, of legal historians, and of some comparatists has led us to the recognition of the universal fact of legal hybridity. This is itself a significant development. Several of the contributions to this volume discuss legal hybrids seldom explored, but which qualify as what Örücü calls extraordinary places with much to teach other, apparently purer, jurisdictions. 44 Other contributions explore not only the plurality of laws, of legal orders recognisable as such to modern eyes, but normative pluralism as well. While it makes up a very small part of mixed legal scholarship, mixed jurists have again led the way here. Örücü has argued, consistent with Glenn s understanding of legal traditions, that comparative law studies should extend to norms of non-state law, folk law and customary law, remembering that the law is global, national and 39 W. TETLEY, Mixed Jurisdictions: Common Law v Civil Law (codified and uncodified) 2000 (60) Louisiana Law Review 677, J. MCKNIGHT, Some Historical Observations on Mixed Systems of Law, 1977 (22) Juridical Review (n.s.) 177, See, e.g., E. ÖRÜCÜ, A General View of Legal Families and of Mixing Systems in E. ÖRÜCÜ & D. NELKEN, Comparative Law, supra n. 36, E. ÖRÜCÜ, Family Trees for Legal Systems: Towards a Contemporary Approach, in VAN HOECKE, Epistemology and Methodology in Comparative Law, supra n. 12, V. PALMER, Mixed Legal Systems and the Myth of Pure Laws, 2007 (67) Louisiana Law Review 1205, E. ÖRÜCÜ, Comparatists and Extraordinary Places, in P. LEGRAND & R. MUNDAY (eds.), Comparative Legal Studies: Traditions and Transitions, Cambridge: Cambridge University Press

9 INTRODUCTION local. 45 In her most recent edited collection, Mixed Legal Systems at New Frontiers, she wrote that existing and new terminology used in analysing individual instances must be clarified in order to provide a workable grid for fitting legal phenomena into explanatory frameworks. New mixes, ongoing mixes and legal systems in transition must then be approached with the understanding gained. This study of legal hybridity is extended to normative hybridity Further than that, it is invaluable to consider legal systems, designated as legal pluralisms, in order to appreciate the relationship between official state law and religious and customary laws, not only as anthropologists but as comparative lawyers. 46 The shift to both official and unofficial legalities does, of course, significantly complicate the work of comparative law, drawing comparatists into debates they typically avoid and for which they are arguably ill-prepared. They are asked to move towards an analysis of what we might call comparative living law, the meaningful persistence of normative or strong legal pluralism in which laws and norms coexist. Indeed, while Palmer has recognised the virtues of this factual approach to the study of legal and non-state norms, he has significant concerns with the implications on comparative classification E. ÖRÜCÜ, Developing Comparative Law, in E. ÖRÜCÜ & D. NELKEN, Comparative Law, supra n. 10, 61. In the present legal pluralist perspective, law spans the range of positive law and then moves to non-state law, rules, custom and tradition. Ibid., 60. See W. TWINING, Globalisation and Comparative Law, in E. ÖRÜCÜ & D. NELKEN, Comparative Law, supra n. 10, E. ÖRÜCÜ, General Introduction: Mixed Legal Systems at New Frontiers, in E. ÖRÜCÜ (ed.), Mixed Legal Systems at New Frontiers, supra n. 19, 7. Cf. Nora Demleitner s comment that [a]t bottom, all legal systems are mixed derived from imported structures, concepts and ideas but also emanating from different normative systems which are based on customs, religions and languages, habitat and natural resources, families, geography and climate, conceptions of morality, and other features. N. DEMLEITNER Combating Legal Ethnocentrism: Comparative Law sets Boundaries, 1999 (31) Arizona State Law Journal 737, In the future, mixed legal systems will become ever more important and predominant. Ibid.., 749. Note that Mixed Legal Systems at New Frontiers grew out of a special volume of the 2008 (3) Journal of Comparative Law dedicated to mixed systems ; the articles in that journal are also included in 2008 (12) Electronic Journal of Comparative Law at ( ). Note also E. ÖRÜCÜ, The Boundaries of Unity: Mixed Systems in Action, 2008 (2) Journal of Comparative Law 1, 1. The latter is an introduction to the volume. 47 See Quebec and her Sisters in the Third Legal Family, supra n. 25, 335 and Two Rival Theories of Mixed Legal Systems, in E. ÖRÜCÜ, Mixed Legal Systems at New Frontiers, supra n. 19, 48. See also J. M. GLENN, Mixed Jurisdictions in the Commonwealth Caribbean: Mixing, Unmixing, Remixing, in E. ÖRÜCÜ, Mixed Legal Systems at New Frontiers, supra n. 19,

10 SEÁN PATRICK DONLAN Recognising these difficulties, the ubiquity of hybridity has important consequences for both comparative law and legal theory. Most obviously, it challenges legal nationalism, positivism, centralism, and monism. More immediately for comparative analysis, it undermines the dissection of plural and dynamic traditions into discrete, closed legal families or systems of formal law. If the study of hybridity both the law in context and the living law lacks the apparent utility of the taxonomic impulse, it might permit us to create more accurate and useful general accounts of the laws and norms of different places and times. As Ignazio Castellucci puts it in his contribution to this collection, it may be best to research first, categorise later. 48 In different ways, the contributors have sought here (i) to look at more diverse mixed legal systems than the European hybrids that dominate comparative and mixed scholarship and (ii) to develop a reasonable, coherent approach to placing state law within wider normative orders. We might call this the study of hybrid legal traditions. 49 This is not, however, to create a new conceptual category, but to sensitise scholars to complexity. After all, all legal and normative traditions are hybrids. 48 In this vein, see The Stellenbosch Papers generated in a colloquium held there in May 2009 on Mixed Jurisdictions as Models? Perspectives from Southern Africa and Beyond, are collected in 2010 (25) Tulane European & Civil Law Forum Cf. D. White, Some Problems of a Hybrid Legal System: a Case Study of St Lucia, 1981 (30) International and Comparative Law Quarterly